The Cambridge History of Eighteenth-Century Political Thought (The Cambridge History of Political Thought)

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The Cambridge History of Eighteenth-Century Political Thought (The Cambridge History of Political Thought)

th e cam b ri dg e h i story of e i g h te e nth - c e ntury p ol i t i cal th ou g h t This major work of academic ref

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th e cam b ri dg e h i story of e i g h te e nth - c e ntury p ol i t i cal th ou g h t

This major work of academic reference provides a comprehensive overview of the development of Western political thought during the European Enlightenment. Written by a distinguished team of international contributors, this Cambridge History is the latest in a sequence of volumes that is now firmly established as the principal reference source for the history of political thought. Every major theme in eighteenth-century political thought is covered in a series of essays at once scholarly and accessible, and the essays are complemented by extensive guides for further reading, and brief biographical notices of the major characters featured in the text, including Rousseau, Montesquieu, Kant, and Edmund Burke. Of interest and relevance to students and scholars of politics and history at all levels from beginning undergraduate upwards, this volume chronicles one of the most exciting and rewarding of all periods in the development of Western thinking about politics. mar k g ol d i e is a Senior University Lecturer in History and a Fellow of Churchill College, Cambridge. rob e rt wok le r is Senior Lecturer in Political Science and in the Special Program in the Humanities, Yale University.

Cambridge Histories Online © Cambridge University Press, 2008

Cambridge Histories Online © Cambridge University Press, 2008

THE CAMBRIDGE H I S TO RY O F E I G H T E E N T H - C E N T U RY POLITICAL THOUGHT e d i te d by

MARK GOLDIE University of Cambridge

and RO B E RT WO K L E R Yale University

Cambridge Histories Online © Cambridge University Press, 2008

cam b ri dg e un ive r s i ty p re s s Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, S˜ao Paulo Cambridge University Press The Edinburgh Building, Cambridge cb2 2ru, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521374224  C

Cambridge University Press 2006

This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2006 Printed in the United Kingdom at the University Press, Cambridge A catalogue record for this publication is available from the British Library isbn-13 978-0-521-37422-4 hardback isbn-10 0-521-37422-7 hardback

Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

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Contents

page xi

Contributors Acknowledgements Citations and abbreviations

xiii xv

Introduction

1

Part I: The ancien r´egime and its critics 1

2

The spirit of nations sy lvana tomase l l i 1 Lessons from the Franks and the Greeks 2 The Roman legacy 3 Voltaire and the English question 4 The spirit of the laws: know thy country 5 The spirit of the laws: the science of freedom 6 The spirit of the laws: commerce and civility 7 The spirit of the laws: the Gothic constitution The English system of liberty mar k g ol d i e 1 The Revolution debate 2 The Allegiance Controversy and the Jacobites 3 The reception of Locke 4 The claims of the church 5 The claims of Ireland and Scotland 6 The claims of the people 7 The claims of women 8 The Country platform 9 ‘Robinocracy’ and its enemies 10 The Court Whigs

v

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9 9 15 19 26 28 31 34

40 40 43 47 50 54 60 62 64 70 75

Contents 3

4

Scepticism, priestcraft, and toleration ri c hard h . p op k i n and mar k g ol d i e 1 Scepticism, Judaism, and the natural history of religion 2 French scepticism and perfectibilism 3 The limits of toleration 4 Arguments for toleration

79

Piety and politics in the century of lights dale k . van k ley 1 Gallicanism and Jansenism in France 2 The ‘Jansenist International’ in Italy, Iberia, and Austria 3 Pietism in Lutheran Germany 4 European Calvinism and English Dissent

110

79 88 92 99

110 119 132 139

Part II: The new light of reason 5

6

7

The comparative study of regimes and societies m e lv i n ri c h te r 1 The ambiguities and resources of comparative method 2 Montesquieu 3 Voltaire 4 Hume 5 Raynal, Diderot, the Deux Indes, and the Suppl´ement to Bougainville 6 Herder

147

Encyclopedias and the diffusion of knowledge dan i e l roc h e 1 English philosophy, encyclopedism, and technical knowledge 2 French encyclopedism, the academies, and the public sphere 3 Censorship and the commercialisation of enlightenment 4 The Encyclop´edistes and their readers 5 The political thought of the Encyclop´edie

172

Optimism, progress, and philosophical history hay dn mas on 1 Optimism 2 Progress 3 Philosophical history 4 Voltaire 5 Gibbon

195

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147 151 159 161 165 169

173 175 180 186 189

195 199 204 206 210

Contents 8

Naturalism, anthropology, and culture wol f gang p ro s s 1 A Counter-Enlightenment? 2 Mankind and the dark abyss of time 3 The history of the human mind 4 The anthropological history of man 5 The regularity and plurality of culture

218 218 223 227 232 238

Part III: Natural jurisprudence and the science of legislation 9

10

11

12

German natural law k nud ha akon s se n 1 The reception of modern natural law 2 The political context of German natural law 3 Christian Thomasius 4 Christian Wolff 5 Immanuel Kant

251

Natural rights in the Scottish Enlightenment jam e s moore 1 The context of Scottish natural jurisprudence 2 Academic reform and the law of nature 3 Gershom Carmichael: reformed scholasticism and natural rights 4 Francis Hutcheson: civic virtue and natural rights 5 David Hume: natural rights and scepticism 6 Lord Kames: disquieting opinions and the law of nature 7 Adam Smith: the natural and sacred rights of mankind 8 Natural rights and the four stages of society 9 Dugald Stewart and the demise of the natural rights tradition

291

The mixed constitution and the common law dav i d l i e b e rman 1 The mixed constitution 2 Parliamentary sovereignty 3 The balanced constitution 4 The separation of powers 5 Delolme versus Price 6 The common law

317

Social contract theory and its critics pat ri c k ri ley

347

vii

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251 255 261 268 279

291 295 297 299 302 304 307 310 314

318 321 324 331 336 340

Contents 1 2 3 4 5 6 7 8

The historical background The equilibrium between consent and natural law in Locke Bossuet and the challenge of divine right to contract theory The anti-contractarianism of Hume and Bentham French contractarianism before Rousseau Rousseau and the radicalisation of social contract theory Kant and the social contract as an ideal of reason The decline of social contract theory

347 350 354 355 358 362 369 373

Part IV: Commerce, luxury, and political economy 13

14

15

16

The early Enlightenment debate on commerce and luxury i stvan h ont 1 The spectre of luxury 2 F´enelon 3 Mandeville 4 Shaftesbury 5 Hutcheson 6 Berkeley 7 The early Montesquieu 8 Melon 9 Voltaire

379

Physiocracy and the politics of laissez-faire t. j. h oc h st ras se r 1 Physiocracy in its historical, intellectual, and political setting 2 The development of physiocracy: from Quesnay to Turgot 3 From wealth creation to legal despotism 4 Critiques of physiocracy and later responses 5 Physiocracy outside France 6 Conclusions

419

Scottish political economy donal d w i nc h 1 Adam Smith’s pre-eminence 2 Legislators versus politicians in a mercantile state 3 The conditions of growth 4 The positive duties of the legislator in commercial society

443

Property, community, and citizenship m i c ha e l s one n sc h e r

465

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379 383 387 395 399 401 404 409 412

419 425 429 434 438 441

443 449 452 457

Contents 1 2 3 4 5 6

Prologue: Babeuf Needs and society Property and the progress of the arts and sciences The Gracchi and their legacy A modern agrarian Conclusion

465 471 475 480 488 492

Part V: The promotion of public happiness 17

18

19

20

Philosophical kingship and enlightened despotism de re k b eale s 1 The idea of the philosopher king 2 Frederick II, Catherine II, Joseph II 3 The idea of despotism 4 The idea of the enlightened despot 5 Conclusion

497

Cameralism and the sciences of the state ke i th t ri b e 1 The development of cameralism 2 ‘Oeconomy’ and the Hausvaterliteratur 3 Justi 4 Sonnenfels

525

Utilitarianism and the reform of the criminal law f re de ri c k ro se n 1 Liberty and the criminal law 2 Crime and punishment in Beccaria 3 Bentham’s theory of proportion 4 The debate over the death penalty 5 Transportation and imprisonment 6 Enlightenment and reform

547

Republicanism and popular sovereignty i ri ng f et sc h e r 1 Rousseau 2 Mably 3 Diderot 4 Venice and Geneva 5 Kant 6 Fichte 7 Humboldt

573

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497 504 511 514 522

525 530 537 542

548 551 557 563 566 568

573 577 579 583 587 592 596

Contents Part VI: The Enlightenment and revolution 21

22

23

24

The American Revolution g ordon s. wood 1 The English constitution 2 Virtual and actual representation 3 Constitutionalism 4 The extended republic 5 The sovereignty of the people

601

Political languages of the French Revolution ke i th m i c ha e l bake r 1 Competing discourses of the Old Regime 2 Revolutionary improvisation 3 Two languages of liberty 4 The people’s two bodies 5 Virtue, regeneration, and revolution

626

British radicalism and the anti-Jacobins i a i n ham p sh e r - monk 1 Nostalgia and modernity 2 The Wilkites and pro-American radicalism 3 Rational Dissent 4 Edmund Burke and the debate on the French Revolution 5 Radical political economy

660

Ideology and the origins of social science rob e rt wok le r 1 The invention of the modern nation-state 2 The French revolutionary invention of social science 3 The id´eologues and their distrust of politics 4 The origins of social science in Britain 5 Saint-Simon and the legacy of Enlightenment political thought

688

Biographies Bibliography General works Primary sources Secondary sources Index

711 787

601 607 610 616 620

626 628 639 648 653

660 663 668 673 683

688 690 695 702 704

787 789 830

901 x

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Contributors

ke i th m i c ha e l bake r Professor of Humanities, France-Stanford Center for Interdisciplinary Studies, Stanford University de re k b eale s Emeritus Professor of Modern History, and Fellow of Sidney Sussex College, University of Cambridge i ri ng f et sc h e r Professor of Political Science, University of Frankfurt-am-Main mar k g ol d i e Senior Lecturer in History, and Fellow of Churchill College, University of Cambridge k nud ha akon s se n Professor of Intellectual History, University of Sussex i a i n ham p sh e r - monk Professor of Political Theory, University of Exeter t i m h oc h st ras se r Senior Lecturer in International History, London School of Economics i stvan h ont Lecturer in History, and Fellow of King’s College, University of Cambridge dav i d l i e b e rman Professor of Law and History, University of California at Berkeley hay dn mas on Emeritus Professor of French Language and Literature, University of Bristol jam e s moore Emeritus Professor of Political Science, Concordia University, Montreal xi

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Contributors The late ri c hard h . p op k i n Formerly Professor of Philosophy, Washington University, St Louis wol f gang p ro s s Professor of German and Comparative Literature, University of Bern m e lv i n ri c h te r Emeritus Professor of Political Science, Graduate School and Hunter College, City University of New York pat ri c k ri ley Professor of Political and Moral Philosophy, University of Wisconsin at Madison dan i e l roc h e Professor of the French Enlightenment, Coll`ege de France f re de ri c k ro se n Emeritus Professor of the History of Political Thought and Senior Research Fellow, Bentham Project, University College, London m i c ha e l s one n sc h e r Lecturer in History, and Fellow of King’s College, University of Cambridge sy lvana tomase l l i Director of Studies in History and Social and Political Sciences, and Fellow of St John’s College, University of Cambridge ke i th t ri b e Visiting Senior Research Fellow, University of Sussex dale k . van k ley Professor of History, Ohio State University, Columbus donal d w i nc h Emeritus Professor, School of Humanities, University of Sussex rob e rt wok le r Senior Lecturer in Political Science and in the Special Program in the Humanities, Yale University g ordon s. wood Professor of History, Brown University

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Acknowledgements

This is the fifth volume to appear in the Cambridge History of Political Thought series. The four earlier volumes are: The Cambridge History of Medieval Political Thought, c. 350–c. 1450, edited by J. H. Burns (1988); The Cambridge History of Political Thought, 1450–1700, edited by J. H. Burns and Mark Goldie (1991); The Cambridge History of Greek and Roman Political Thought, edited by Christopher Rowe and Malcolm Schofield in association with Simon Harrison and Melissa Lane (2000); and The Cambridge History of Twentieth-Century Political Thought, edited by Terence Ball and Richard Bellamy (2003). It will be followed by The Cambridge History of NineteenthCentury Political Thought, edited by Gregory Claeys and Gareth Stedman Jones. We owe a debt of gratitude to the advisers who, at an early stage, commented on our prospectus: James Burns, Knud Haakonssen, James Moore, John Pocock, Quentin Skinner, Donald Winch, Keith Baker, and Melvin Richter. The staff of Cambridge University Press have been forbearing and constantly supportive, most especially Richard Fisher and Jeremy Mynott. Alison Powell expedited production, and Linda Randall applied her impeccable copy-editing skills. This volume has been too long in gestation. We are grateful for the patience of contributors who produced on time what was requested, as well to those who stepped into the breach when gaps appeared in the cast list. We are indebted to George St Andrews and Sylvana Tomaselli for translating chapter 8 from the French and to George St Andrews for translating chapter 20 from the German. To them and to Rachel Hammersley and Tim Hochstrasser we are grateful for help in preparing biographical data. For research and editorial assistance we owe much to David Adams, James Martin, Sara Pennell, Jacqueline Rose, Sami Savonius and Jane Spencer. Tom Broughton-Willett generously stepped in at short notice to prepare the index. Preparation of the index was assisted by grants from the John K. xiii

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Acknowledgements Castle Fund (honouring one of the founders of Yale University) and the Department of Political Science, Yale University. We remember the careers and writings of three distinguished scholars, two of whom, but for their untimely deaths, might have contributed to this volume, Maurice Cranston (1920–93) and Judith Shklar (1928–92), and one of whom, a contributor, died while this book was in production, Richard Popkin (1923–2005).

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Citations and abbreviations

All quotations (except for poetry) have been modernised. Phrases and book titles in foreign languages are provided with English-language translations, except where the meaning will be readily understood by Anglophone readers. All citations of texts published in the series Cambridge Texts in the History of Political Thought are to the editions in that series. The following abbreviations are used throughout this volume. IPML

LJA, LJB

SC

SL

THN

TMS

Jeremy Bentham, An Introduction to the Principles of Morals and Legislation. Cited by page references to the edition by J. H. Burns and H. L. A. Hart, with a New Introduction by F. Rosen (Oxford, 1996). 1st pr. 1780 and publ. 1789. Adam Smith, Lectures on Jurisprudence. Cited by page references to the Glasgow edition by R. L. Meek, D. D. Raphael, and P. G. Stein (Oxford, 1978). Report A, 1762–3; B, 1763–4. Repr. Liberty Classics, Indianapolis, 1982. Jean Jacques Rousseau, The Social Contract (Du contrat social). Cited by book and chapter number, and page references to The Social Contract and Other Later Political Writings, ed. V. Gourevitch (Cambridge, 1997). 1st publ. 1762. Charles de Secondat, baron de Montesquieu, The Spirit of the Laws (L’Esprit de lois). Cited by book and chapter number, and, where appropriate, page references to the edition by A. M. Cohler, B. C. Miller, and H. S. Stone (Cambridge, 1989). 1st publ. 1748. David Hume, A Treatise on Human Nature. Cited by book, part, and section. The standard modern edition is by D. F. Norton and M. J. Norton (Oxford, 2000). 1st publ. 1739–40. Adam Smith, The Theory of Moral Sentiments. Cited by part, section, chapter, and paragraph number, from the Glasgow edition by D. D. Raphael and A. L. Macfie (Oxford, 1976). 1st publ. xv

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Citations and abbreviations

TTG

WN

1759; expanded and revised final (6th) edition, 1790. Repr. Liberty Classics, Indianapolis, 1982. John Locke, Two Treatises of Government. Cited by treatise and section number, and page references to the edition by P. Laslett (Cambridge, 1988). 1st publ. 1689 (but bearing date 1690). Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations. Cited by book, chapter, and section number, from the Glasgow edition by R. H. Campbell, A. S. Skinner, and W. B. Todd (2 vols., continuously paginated, Oxford, 1976). 1st publ. 1776. Repr. Liberty Classics, Indianapolis, 1981.

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Introduction

In framing our original plan of this work, we adopted a number of guidelines which formed our prospectus for the contributors and which, by and large, still lend direction to and map the limits of this volume. We were determined in the space available to provide as comprehensive a treatment as possible of eighteenth-century political thought in the diverse historical contexts of the period, instead of a series of essays on our subject’s acknowledged masters. We wished to give due weight to the polemical character of eighteenthcentury disputations and to the circumstances surrounding the composition of the works at issue, rather than to subsume their differences of principle or perspective in separate chapters manifesting the internal logic of each author’s career. We accordingly aimed for a largely thematic framework in preference to an interconnected collection of intellectual biographies. In addition to focusing on the seminal writings of the vanguard of the eighteenth-century’s republic of letters, we also wished to address the texts of relatively minor figures who often couched their contributions to both national and international debates in locally specific contexts and idioms. We sought to survey not only the towering treatises of the age of Enlightenment but also a large number of its disparate pi`eces fugitives, in part because we thought it necessary to fill in the valleys from which the peaks arose, but more generally because, in our judgement, some of the most centrally recurrent topics of eighteenth-century political thought were pursued in works that were perhaps of greater historical than philosophical significance. Our temporal limits were of course determined by the structure of the series as a whole, but the logic which required that we begin around 1700 and end around 1800 seemed internally compelling as well as appropriate to the broader narrative shaped by the volumes before and after this one. The Cambridge History of Political Thought, 1450–1700 closes with Locke but does not address the great issues of toleration which his writings highlighted around the turn of the eighteenth century and thereby provided one of the principal mainsprings of the age of Enlightenment embraced 1

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Introduction by this work. If we have not sought here to retrace the first appearance of such terms as ‘The Enlightenment’, ‘The Scottish Enlightenment’, ‘The Counter-Enlightenment’, or ‘The Enlightenment Project’ (in English dating from the late nineteenth century, the early twentieth century, the late 1950s, and the early 1980s, respectively), our reasoning is that these terms need to be situated even more in the post-Enlightenment philosophical and political contexts which gave rise to them than with reference to the ideological currents they were introduced to define. The periodisation of the age of Enlightenment, particularly with respect to its initial phase, in so far as that epoch of European intellectual history can be regarded as marking the advent of modernity, has itself been a subject of much scholarly debate. Paul Hazard, for instance, in his Crise de la conscience europ´eenne (The Crisis of the European Mind) of 1935, dated its origins from a thirty-year span around 1680, and Michel Foucault, in Les mots et les choses (The Order of Things) of 1966, on the other hand, concentrated instead upon an interval of similarly rapid epistemic change beginning 100 years later. Since this volume addresses themes in eighteenth-century political thought and not the period’s later historiography, scholarly differences of interpretation that turn around or reflect different chronologies are beyond our scope. It in fact suits our purpose well that in other quarters there should be disagreements about the origins, nature, and limits of the Enlightenment, since our perspective of eighteenth-century political doctrines lies comfortably within the orbits of such competing claims as those of Hazard and Foucault. It also accords with the perception of a number of Enlightenment thinkers themselves to the effect that their age was launched around the time between the Revocation of the Edict of Nantes in 1685 and the death of Louis XIV in 1715, drawing inspiration in that period above all from Newtonian science and Lockean epistemology, as well as ideas of toleration derived not only from Locke but also from Bayle. Ernst Cassirer adopted roughly the same chronological perspective in his Philosophie der Aufkl¨arung (The Philosophy of the Enlightenment) of 1932, albeit on more philosophical foundations, in distinguishing the eighteenth century’s ‘systematic spirit’ from the seventeenth century’s ‘spirit of system’, a contrast he drew directly from d’Alembert, who first made this claim in his Discours pr´eliminaire to the Encyclop´edie of 1751. Our closing this volume with the rise of Napoleon in the mid- to late 1790s rather than with the demise, by the early 1780s (at least in France), of most of the major philosophes is, we believe, justly warranted by the parallel chronologies of the eighteenth-century’s intellectual and political histories. 2

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Introduction The French Revolution of 1789, even more than the American Revolution of 1776, was perceived by both contemporary advocates and critics as a realisation or practical culmination of Enlightenment ideals, or, alternatively, as a descent into political chaos that the philosophes had foreseen and sought to avert. To have ignored the French Revolution would have been tantamount to our denying the immediate influence and proximate political impact of much late Enlightenment thought, as well to our disengaging from our subject those political thinkers of this period for whom the Terror seemed to have been generated by dangerous currents of eighteenth-century philosophy. A conception of the unity of theory and practice may be said to lie at the heart of many Enlightenment programmes of political or constitutional reform, but it is also with regard to that intellectual movement’s bearing on the eighteenth century’s two great revolutions that the realisation of this pragmatic principle has often been identified as the Enlightenment’s chief philosophical objective. The late 1790s was no doubt a period of pivotal significance in both closing a debate about the Enlightenment’s influence on the Revolution and inaugurating fresh perspectives on political thought that would come to prevail not only in Restoration France but throughout Europe in the early nineteenth century. We seek in this work to address that closure but not to map the new paths that arose from it. We thus include Burke but not de Maistre, Smith but not Malthus, Kant but not Hegel. We consider concepts of both ancient and modern liberty in the philosophies of Montesquieu, Hume, Rousseau, Smith, and Ferguson, but exclude the foundations of liberalism in the doctrines of Constant and Mme de Sta¨el. We address Bentham’s seminal utilitarian works but not his subsequent constitutional theories. In concluding this volume with the concept of ‘ideology’ in the late 1790s we mean both to bring the history of eighteenth-century political thought to its chronological term and to lay a bridge to the series’ next volume. Framed by an English Revolution on the one side and a French Revolution on the other, with an American Revolution between them, the doctrinal battles that form the hundred years’ war of the period’s intellectuals, publicists, and even some of its heads of state, were waged around a great variety of issues. As presented here across several chapters we conceive one of this work’s central themes to be the interpenetration of political and religious ideas in both theory and practice, as witnessed not only in the progressive disengagement of secular from sacred authority throughout the eighteenth century, but also in appraisals of the theological and 3

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Introduction political ambitions of both the papacy and different Protestant churches. These debates turned, for instance, around the claims of Jacobitism in England, ultramontanism and Gallicanism in France, Josephinism in Austria, and the tensions between priestcraft, deism, and scepticism that marked numerous controversies throughout much of Europe in this period. The imputed conjunction of knowledge with power, or savoir with pouvoir, in the age of Enlightenment, often the subject of critiques of the period which trace its protagonists’ political ambitions to their advocacy of science, comprises an equally major theme of this volume. It is examined here in a variety of contexts, including the promotion of ideas of progress or even eschatological optimism that inclined many progressive thinkers of the period to regard religious faith and orthodox beliefs as tantamount to barbarism, to the diffusion of dictionaries and newspapers that enabled readers in metropolitan centres to form themselves into new political classes, to the attempts of writers, kings, and queens to realise Plato’s ancient ambition of promoting genuinely philosophical kingship, by the late eighteenth century already defined as ‘enlightened despotism’ by certain figures sympathetic to that doctrine’s objectives. A number of chapters address themes that turn around the political economy of the period, embracing both national and international debates on property, citizenship, commerce, and luxury, and the competing claims of virtue and wealth, as well as the development of physiocracy in France, cameralism in Germany and Austria, and the association of economics with moral philosophy that in Scotland was to form the nexus of the most advanced of all the human sciences of this period. Other chapters, including those that address a German tradition of natural jurisprudence, conceptions of the social contract and the common law of England, concentrate instead upon juristic themes, while still others are focused upon national arguments about political parties, notions of liberty, and ideals of patriotic rule, or on internationalist perspectives and philosophies of history which in the eighteenth century informed both doctrines of naturalism and the comparative study of societies. If we have not sought to engage with modern philosophers and contemporary social theorists about the central tenets and tendencies of the age of Enlightenment as a whole, we hope that attentive readers of this volume who have been drawn by other commentators to reflect on the eighteenth-century’s putative public spheres, metanarratives, romantic reaction to rationalism, roots of totalitarian democracy, or passage from classicism to modernity, will here find such evidence as may enable them to navigate through such thickets of interpretation. 4

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Introduction In so far as they inform so much of the political thought of the period as a whole, several of the themes addressed in this work, especially with regard to jurisprudence as well as to theology and economics when those subjects have manifest political ramifications, are traced across long spans and with reference to a wide range of thinkers, thereby necessitating brisker treatments of individual works than chapters which provide commentaries on national debates or traditions, or, as with respect to the American and French Revolutions, which deal with texts produced in highly concentrated periods of political ferment. In attempting to situate eighteenth-century political tracts and arguments within the specific contexts that occasioned them, we may be thought to have adopted a methodology appropriate to the Cambridge History of Political Thought as a whole, but that would be to exaggerate both the depth of our ambition and the extent of our control over the various chapters we commissioned. More strictly biographical formats for each chapter have been adopted by the editors of other volumes in this series, and, aside from introducing obvious chronological divisions, no attempt has been made to establish a consistent format throughout the collection. Not least because eighteenth-century thinkers often envisaged their political writings as contributions to wider subjects scarcely circumscribed by such disciplinary boundaries as were to arise after the age of Enlightenment, we have tried to be undogmatic about defining the meaning of political thought and therefore the range and boundaries of our work, even while acknowledging that the thematic divisions we have preferred cannot but exclude other perspectives. The limitations of our approach have occasionally and even increasingly seemed to us just marginally less compelling than its merits. Particularly with reference to the pre-eminent thinkers of the eighteenth century, we recognise that in emphasising specificity and context we have been obliged to leave less scope for biographical continuity and philosophical coherence than some scholars might have wished, and we have attempted to meet such concerns as best we could by way of subdivisions of each chapter which often turn around the careers of separate authors and, even more, in our biographical appendix. If the length of our entries in that appendix appears to be inversely correlated with the historical significance of their subjects, that is just because we rely upon (and direct our readers’ attention to) other sources that provide fuller biographical treatments of the most major figures than are appropriate or possible here. Neither have we managed or even sought to impose our design of this work upon its separate authors, many of whom adopted an alternative view 5

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Introduction of their task and each of whom interpreted his or her assigned brief independently of the others. In the spirit of the eighteenth century’s republic of letters we solicited contributions from experts of different generations with diverse backgrounds based in several countries in both Europe and North America. In a few instances we were confronted by the difficulty of integrating a contributor’s style, choice of topics or interpretation of texts even within the loosely designed framework we provided, and in order to produce this work at all we accordingly came, reluctantly, to feel obliged to abandon our original hope that its separate compositions might appear to have been drafted seamlessly by an invisible hand. Much effort has nonetheless been devoted to achieving that effect, so far as it has been in our power, at least in order to maintain some consistency of style and balance, as well as to fill in gaps and strike out overlaps where they arose.

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I The ancien r´egime and its critics

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1 The spirit of nations sy lvana tomase l l i

1

Lessons from the Franks and the Greeks

Montesquieu’s L’Esprit des lois1 (The Spirit of the Laws, 1748) stands among the most intellectually challenging and inspired contributions to political theory in the eighteenth century. The scope of the book, its sustained reflection, its impact on social and political debates throughout Europe, as well as its enduring influence make it an exceptional work. As its subtitle indicates, it purports to examine the relation laws must have to the specific constitution, civil society, and physical circumstances of the country in which they are being made or enforced. To apprehend the spirit of a nation’s laws is thus to understand the relationship which pertains between a number of social, political, and material factors peculiar to that nation. What the remainder of the subtitle further suggests, and the body of the text makes explicit, is that the knowledge which such an examination both requires and produces is historical in nature. In linking history and law and making both central to political theory Montesquieu, together with the Scottish school of political economy, which he profoundly influenced, set the tone and form of modern social and political thought. He paved the way leading to Hegel, who recognised the true nature of his genius better than most of his admirers (Hegel 1991, pp. 29, 283, 310–11; 1999, p. 175; see also Carrithers 2001a). The importance of history to the art of the legislator had long been recognised by the beginning of the eighteenth century (see especially Pocock 1999–2003). Unsurprisingly, the Historiographer Royal, Voltaire, wholeheartedly endorsed it; but, as will be shown below, Voltaire’s reading of 1 Its full title is De l’esprit des lois ou du rapport que les lois doivent avoir avec la constitution de chaque gouvernement, les moeurs, le climat, la religion, le commerce, etc. A quoi l’auteur a ajout´e des recherches nouvelles sur les lois romaines touchant les successions, sur les lois franc¸aises et sur les lois f´eodales, which translates as On the Spirit of Laws or on the Relation which Laws Ought to Bear to the Constitution of each Government, Mores, Climate, Religion, Commerce, etc. to which the Author Has Added New Research on Roman Law relating to Successions, French Laws, and Feudal Laws.

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The ancien r´egime and its critics history differed markedly from that of Montesquieu. Along with lesserknown political writers, however, both he and Montesquieu participated in an already established political debate about France’s political identity in which history played a crucial role, not least since Bodin’s Methodus ad facilem historiarum cognitionem (Method for Learning History Easily, 1566), a work which greatly affected the demarcation between secular and ecclesiastical history. It is this protracted political argument about France’s true nature that provides the context for Montesquieu’s political reflections as well as those of many of his contemporaries. The power struggles involving the crown and, at various times, all or parts of the clergy, the aristocracy, and the magistracy had engendered a large body of literature, ranging from political testaments, such as that of Richelieu, published in 1688, and memoirs from the leading protagonists of the Fronde, such as those of the Cardinal de Retz, which appeared in 1717, to substantive political treatises addressed to heirs to the throne. Amongst those who drew on history for the latter purpose was Bossuet in his Politique tir´ee des propres paroles de l’´ecriture sainte (Politics Drawn from the Words of Scripture, 1679) which, together with his Discours sur l’histoire universelle (1681), sought to present the then Dauphin, Louis XIV’s heir apparent, with all that could be gleaned from history, sacred and profane, that was necessary ‘to wise and perfect government’ (see Riley 1990, pp. xiii–lxviii). Not all political works made systematic use of history, but they were all informed by it to some degree by the turn of the century, and no-one in the intellectual world could be unaware of its deployment. An instance of a book which appealed to Greek mythology, rather than history sacred or profane, was the exceedingly widely read and highly influential Les Aventures de T´el´emaque, fils d’Ulysse (1699), which F´enelon wrote for the moral edification of Louis XIV’s grandson, the duc de Bourgogne. F´enelon was far less accepting of the mores of his age than many of his contemporaries, and was highly critical of Louis XIV’s conception of the aim of government and the nature of glory on earth. It was F´enelon’s hope, therefore, that, once on the throne, his pupil, the young prince, would prove to be the antithesis of his grandfather, the Sun King Louis XIV; that is, that he would be a peaceful, frugal, and generally self-denying monarch, and that far from seeking to be involved at every level of the kingdom’s administration, he would interfere as little as possible with, and hence delegate most of, France’s governance (F´enelon 1994, p. 299) – a theme which echoed through some eighteenth-century political works in contrast to calls 10

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The spirit of nations for a dirigiste approach to reform.2 Through Mentor’s teachings, Telemachus is prepared to surpass his father Ulysses, and the predominant lesson, one that is consonant with F´enelon’s quietist belief that Christians must strive to love God for no other reason than that he is God, and hence must love God in a entirely disinterested manner, is that of selflessness (Keohane 1980, pp. 341–3; Riley 1994, pp. xxv–xxviii). Telemachus must learn to rule not for himself, but for the good of the people. He is encouraged in particular to forsake luxury and not to think of glory in terms of magnificence. He is not to build superb buildings, nor engage in wars of aggrandisement, but leave behind him a contented, industrious, and virtuous people who, whilst welcoming to merchants and engaged in trade, are primarily agrarian and live a simple life uncorrupted by luxury (F´enelon 1994, pp. 294–301). F´enelon’s unequivocal disapproval of luxury, which he linked to women and their presence at court, which they corrupted, runs throughout his political writings.3 In his Examen de conscience pour un roi (1734) F´enelon reminded his royal charge of the lack of ostentation of his ancestors’ abodes before the reign of Francis I, at which time women began to appear at court, and praised St Louis in particular for the modesty of his house and the economy with which it was run (F´enelon 1747a, pp. 14–20). Next to luxury, it was war that concerned F´enelon most, and the Examen stresses the iniquity of wars and argues that it is best for the nation that its king seeks to maintain a position of equality with the rest of European countries so as to maintain a peaceful equilibrium. This was also the subject of his remonstrance to Louis XIV in a letter first published by d’Alembert in 1787, in the latter’s Histoire des membres de l’Acad´emie franc¸aise (F´enelon 1964, pp. 299–309). For F´enelon all wars were civil wars. Humanity was a single society and all wars within it the greatest evil, for he argued that one’s obligation to mankind as a whole was always greater than what was owed to one’s particular country (F´enelon 1810, p. 62). Aside from the negative duty of desisting from the self-indulgence of opulence and warring, F´enelon mentioned also a positive one. He deemed it incumbent on princes to study the true form of the government of their kingdom. He thought it their God-given duty to study natural law, the laws of nations, as well as the fundamental laws and customs of their particular nations. This entailed knowing the way the kingdom had 2 For an account of F´enelon’s influence and the plans which he, together with the dukes of Beauvillier and Chevreuse, hoped to put to the prince once he was king, the Plans de gouvernement or Tables de chaulnes, see Keohane 1980, pp. 343–6. 3 On luxury, see ch. 13 below.

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The ancien r´egime and its critics been governed under the different waves of Germanic invasions; what parlements and Estates General were; the nature of fiefdoms; how things had come to be as they were. From this it followed further that ‘the study of the history, mores and ancient form of government in all its detail should be regarded not as a matter of idle curiosity but as an essential duty of monarchs’ (1747a, pp. 9–10).4 While L’Esprit des lois clearly shows Montesquieu’s determination to contribute to the wisdom and virtue of princes and legislators, his aim was not only to press history – understood as a catalogue of examples to emulate or avoid – into the service of monarchs, but also to discover its dynamics through an analysis in which the character of rulers and the particular forms of government of their respective countries were only two, albeit crucial, of the several variables which, combined, made for the spirit of nations. This said, in devoting one third of his magnum opus to a discussion of the origins of the monarchy in France and its ancient laws, Montesquieu was following an old intellectual tradition. The question of the nature of France’s monarchy was centuries old, and so was turning to the country’s earliest history to endeavour to answer it (see, for instance, Kelley 1970, esp. pp. 283ff). No less than L’Esprit des lois, one of the most famous treatises of this kind, Franc¸ois Hotman’s Francogallia, first published in 1573, looked back as far as the political culture of the Germanic peoples described by Tacitus, to support, in Hotman’s case, a theory of resistance. Partly fuelled by partisan uses of France’s past, several important works of historical compilation were available by the end of the seventeenth century, which, unlike Hotman’s, were acknowledged by Montesquieu, including Andr´e Duchesne’s Les Antiquit´es et recherches de la grandeur des rois de France (1609), Charles Ducange’s Glossarium mediae et infimae latinitatis (1678), Etienne Baluze’s Regum francorum capitularia (1677), and, later still, Leibniz’s De l’origine des Francs (1720). The historical knowledge diffused by such annals informed competing conceptions of monarchy which were published from the beginning of the eighteenth century. Montesquieu took issue with (or rather dismissed out of hand) two of them in particular, the Abb´e Jean Baptiste Dubos’s Histoire critique de l’´etablissement de la monarchie franc¸aise dans les Gaules (A Critical 4 One could think of the eighteenth century as being divided between those who, wittingly or not, followed F´enelon in seeking to imagine a fundamentally different moral order, one that placed restraints on material consumption and the inequalities that came with it; and those who sought to work within what they took to be human nature and the limitations placed on their society by historical and other contingencies. Rousseau was to follow F´enelon, whereas Montesquieu was not. Whatever the similarities and differences between their respective political perceptions, what divided them was their respective stance on the system of luxury, understood as a non-eradicable part of political reality.

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The spirit of nations History of the Origin of the French Monarchy in Gaul, 1735) and Henri comte de Boulainvilliers’s Histoire de l’ancien gouvernement de France et de l’Etat de la France (A History of the Ancient Government of France and of the French State, 1727; see Carcassonne 1927). Inspired in part by Hotman, Boulainvilliers claimed that the rise of monarchical government in France was in conflict with its ancient, Frankish, constitution. The Franks, he argued, had originally been free and equal. Their chiefs had exercised local authority in fiefdoms not subject to the rule of a remote king. Their nobility had been defined by a lineage of racial descent and by ties of reciprocity and mutual respect, whereas the French monarchy had managed progressively to displace them by filling its coffers with the proceeds of manufactured ennoblements which enabled it to employ mercenary troops. In describing feudal government as the greatest political masterpiece of the human mind, Boulainvilliers thus advanced what came to be termed the th`ese nobiliaire, or Germanist theory, of the pre-history of the French state. Dubos, by contrast, put the case for Roman imperial rule, under which the tribes of ancient Gaul had not been enslaved by Rome but instead welcomed an authority that protected them from marauding tribes of Vandals and other barbarians while preserving their indigenous customs, laws, and language. The Capetian dynasty of the French monarchy had thus been prefigured by a beneficent imperial presence under which the Gauls had not been dispossessed of their lands and which had provided a model for stately order before the advent of fiefdoms and their attendant seigneurial rights claimed by the French nobility. Dubos’s depiction of the conquest of Gaul as, in essence, a peaceful settlement which established a sovereign power in France that had preceded the rise of feudalism in the middle ages came to be termed the th`ese royale, or Romanist theory, of the origins of the French state (see Ford 1953 and Keohane 1980, pp. 346–50). What made Montesquieu’s voice especially distinctive in this debate was the deployment of his thesis within the dual context of continuing admiration for republican forms of government and growing regard for modern commercial and powerful England. Momentous lessons could be drawn from both models, yet France had no cause to seek to imitate either; it could and indeed had to draw from its own well to meet its own unique circumstances. Such was the view which Montesquieu had developed into a philosophical position, namely that, to paraphrase Hegel’s Philosophy of Right (1833), legislation both in general and in particular had to be treated not abstractly and in isolation, but as integral to the whole of the 13

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The ancien r´egime and its critics features which make up the character of the nation (Hegel 1991, para. 3, p. 29). The background against which Montesquieu wrote was by no means a politically or intellectually complacent one (Keohane 1980). Contrary to a notion that remains prevalent, the ancien r´egime was not a static social and political entity against which its so-called ‘critics’ raged. The political reality of the regime was such that it had nearly always been in a state of contestation, scrutiny, and self-criticism. From the court down to obscure pamphleteers there were proposals for reform, criticisms of such proposals, and defences of counter-measures, plans, and visionary schemes – all of which involved definitions and redefinitions of the nation and the legitimate source of authority within it. As the eighteenth century unfolded so did the intricacy of the web of arguments about France’s identity, its true institutional character, and the policies required to maintain it or restore it to its authentic form, for those who thought the nation had already departed, or was at risk of departing, from its true nature. The perennial question of the extent and limits of papal jurisdiction over France’s religious institutions provided further occasions for analyses of its constitutional nature.5 The controversies drew in many participants, although most of them focused on specific aspects of the debate, such as the fiscal, commercial, or demographic, whilst in his magisterial work Montesquieu brought them all together. Two comparisons were repeatedly deployed within this body of literature: one with ancient Rome, the causes of whose rise and fall continued to be an absorbing subject of analysis throughout Europe; the other with modern England, whose commercial success was likewise fascinating to political observers. A number of broad themes prevailed within the discussions of the character of France’s and other European governments, namely, the way to administer public finances, the demarcation between ecclesiastical and secular powers, the question of population growth, toleration, and the importance of mores to political concerns. L’Esprit des lois dealt with all these issues and is famous for its accounts of both Rome and England. Montesquieu had, however, made notable interventions on these subjects before 1748. They will be the subjects of the next section; the object of the subsequent one is to provide a contrast with Montesquieu’s reflections on the nature of France by drawing on some of Voltaire’s writings on this topic; the final parts of the present chapter will be devoted to his magnum opus.

5 For which see ch. 4 below.

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The spirit of nations 2

The Roman legacy

As d’Alembert remarked, Montesquieu’s Consid´erations sur les causes de la grandeur des Romains et de leur d´ecadence (Considerations on the Causes of the Greatness and Decadence of the Romans, 1734) could appropriately have been entitled ‘Histoire romaine, a` l’usage des hommes d’´etat’ (‘Roman History for Statesmen’) (Montesquieu 1964, p. 25). True to the practice of the day, Montesquieu did indeed turn to Roman history to impart lessons to modernity and had already done so in his Dissertation sur la politique des Romains dans la religion (Dissertation on Roman Politics in Relation to Religion), presented to the Academy of Bordeaux in 1716. The principal use which Rome had for the president of the Bordeaux parlement (which Montesquieu became in that year) was to illustrate his views on the relationship between church and state. Justly deemed one of the most interesting of his minor works (Shackleton 1961, p. 22), the Dissertation is notable partly because it makes clear that, while every society needs religion as a matter of psychological and moral necessity, the Romans required one solely for political purposes. In a period in which quasi-anthropological accounts of the origins of religion considered fear, in the main, as providing the primary explanation for the human disposition to believe in the supernatural, it is noteworthy that Montesquieu denied this to have been naturally the case with the Romans. Although not always consistently, he claimed the Romans feared absolutely nothing; in fact, it was because of their fearlessness that it had been a matter of political necessity to instil awe of deities into them. Montesquieu further contended that the Roman legislators had had no need to reform mores, nor to ground ethics and civil duties in religious faith. Morality and religion – and this was the most striking point in an age in which the issue of loss of faith was debated in terms of its consequences for morality – were thus presented as entirely distinct. The social utility of religious belief resided in the fact that it afforded control over the Roman population, and the entire priestly hierarchy was subordinate to the civil authorities. Religion was established in Rome as an instrument of political domination over an otherwise indomitable people. Perhaps surprisingly, Montesquieu believed the manipulation of the population by the political leadership did not imply that the elite was itself devoid of faith. Calling on the authority of Ralph Cudworth, one of the Cambridge Platonists and the author of a polemic against atheistic materialism, The True Intellectual System of the Universe (1678), Montesquieu argued that ‘enlightened’ Romans believed in a supreme deity. 15

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The ancien r´egime and its critics They were theists. What is more, given that the ancient Romans regarded with indifference the form which worship assumed, they were a tolerant people, who considered all theologies, all religions, ‘as equally good’ (1964, p. 41).6 They were intolerant only of inherently intolerant religions (Bianchi 1993; Rotta 1993; Tomaselli 2000; Kingston 2001). That toleration was an unquestionable moral and political good was a crucial conviction of Montesquieu’s (Linton 2000b). Describing intolerance in his Lettres Persanes (Persian Letters, 1721) as an epidemic illness that had spread from the Egyptians to the Christians, he traced it to the spirit of proselytising that the Jews had taken from their Egyptian captors. He believed intolerance violated the eternal laws of natural justice (which he regarded as emanating as a matter of necessity from God’s nature, but which would exist even if God did not), and undermined sound politics, for it deprived a nation of the skills and knowledge that were often specific to a particular religious community. States benefited from a multiplicity of religions, as those in the minority, being excluded from the system of honour and dignity reserved for the dominant one, strove through industriousness to distinguish themselves by the acquisition of riches. Moreover, established religions themselves gained from the presence of other faiths within a nation as it encouraged them to keep corruption in check (Montesquieu 1964, pp. 106–8). Cataloguing the upheavals and demise of the Roman Empire in the East in the Consid´erations, Montesquieu made much of the Emperor Justinian’s and his successors’ religious intolerance and claimed that it was the inability to recognise the proper limits of ecclesiastical and secular powers which had been the most poisonous source of the Eastern empire’s ills. ‘This great distinction’, he explained, ‘which is the basis of the tranquillity of peoples, is founded not only in religion, but also in reason and nature, which dictate that entirely separate things, which can only subsist separate, never be confounded’ (p. 483). Whilst the clergy did not constitute a separate estate amongst the ancient Romans, the distinction between secular and clerical was as clear to them as it was to his contemporaries. Important though this subject and all matters relating to it were to Montesquieu, a clear demarcation was drawn around it. For if Rome’s history had important lessons to impart to French legislators in terms of the relationship between church and state, religion and society, lessons which Montesquieu was at pains to draw repeatedly in his writings, it was emphatically not the proper mirror to hold to France when it came to understanding 6 All translations from this text are mine.

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The spirit of nations its true constitutional nature. Montesquieu was, of course, not ignorant of the legacy of Roman law. On the contrary, he went to some length to demonstrate its extent, as he sought to present it, not as a welcome inheritance but as an embarrassment and a burden on the nation. Thus, in Letter 100 of the Lettres Persanes, Rica, one of the imaginary Persians through whose epistles the author voiced his political and moral disquiet, mocked the French for the pride they took in dictating fashion and culinary tastes to the whole of Europe, despising all that was foreign, while remaining wholly unconcerned that they themselves followed alien political and civil practices. ‘Who would believe the oldest and most powerful kingdom in Europe to be governed for the last ten centuries by laws which are not its own?’, asked the Persian. This might have been credible had the French been a conquered, rather than a conquering, nation. As it was, this proud people ‘had abandoned the ancient laws made by its first kings in the general assemblies of the nation. What is more, the Roman laws they had taken instead were partly made and partly codified by emperors contemporary to their own legislators’ (Montesquieu 1964, p. 115).7 The oddity of taking on freely and for no apparent reason another people’s law could not have been made more explicit. Completing their self-imposed and wholly unwarranted servitude, the letter went on, the French showed unqualified obedience to every single papal decree. Nor did the ‘bizarrerie of the French spirit’ stop there, for as another protagonist, Usbek, remarked in a subsequent epistle, despite the infinite number of ‘useless or worse’ laws which the French had taken from the Romans, they had failed to take from them paternal authority, patria potestas, on which these laws were grounded (p. 131), a point made by Hotman and others in the preceding century (Kelley 1970, pp. 285–6). While in his early writings Montesquieu already conceived of the Roman legacy as perverting France’s true character, he did not believe, however, that Rome’s constitution was devoid of interest even from a French political perspective. One of the first ‘lessons’ which Montesquieu drew in the Grandeur des Romains is central to the whole of his political thought. It bears on the mechanism inherent in some nations by which any deviation from their true political nature can be amended. What made Rome’s government admirable, according to him – and here, as indeed throughout his study of the republic, he was closer to Bossuet’s account than has been thought (pace Shackleton 1961, pp. 165, 176) – was its capacity to rectify abuses of power 7 This criticism was by no means novel. As Kelley (1970) has noted, Pasquier, Le Caron, and others bemoaned the intrusion of Roman law into French jurisprudence and its consolidation through the teaching of law in the universities as well as through canon law.

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The ancien r´egime and its critics through the spirit of its people, the strength of its senate, or the authority of some of its magistrates. Only in this respect could the example of Rome be instructive politically to French legislators, for Rome owed its liberty to this self-correcting capacity, for which, contrary to the claims made by Italian republics about their own perpetuity, Montesquieu found no parallel in either ancient or modern history beside that of England, to which he compared Rome. ‘The government of England is wiser’, he wrote, ‘because it has a body which constantly scrutinises it, and constantly scrutinises itself; whatever its mistakes, they do not last long and are often useful by the very attentiveness they give to the nation.’ He held it to be of the utmost importance that ‘a free government, that is one that is always agitated, was open to corrections through its own laws’, for it could not otherwise maintain itself long (Montesquieu 1964, p. 452). Montesquieu balanced this point with cautionary remarks on the prudence of leaving long-established forms of government alone, explaining in terms now more readily associated with Edmund Burke’s Reflections on the Revolution in France (1790) that the reasons which had sustained such states over time were often complicated and unknown and would continue to operate in the future (1964, p. 470). In France’s case, the complexities of its political structure as well as its essence were perceptible through a comprehension of its history following the Germanic invasions. This history was by no means simply an account of the de facto triumph of barbarism over civilisation, or of one set of political and social customs and practices replacing another. What was peculiar to France was that its vanquished past remained perversely and distortedly alive. The country had inherited two conflicting characters, one disciplined to the point of submission, the other independent to the point of unruliness, one southern, the other northern. This dichotomy Montesquieu strengthened in an essay Sur les causes qui peuvent affecter les esprits et les caract`eres (On the Causes which Can Affect the Mind and Character, first published in 1892, but believed to pre-date L’Esprit des lois), by juxtaposing Catholicism, associated with the spirit of submission, to Protestantism, identified with that of independence (1964, pp. 493–4). The barbarian spirit of independence was so infectious that it had contaminated even the Romans when they came into contact with the northern Germanic tribes. Thus the age in which the Romans sentenced their own children to death for a victory secured against orders was replaced by one during which, by all accounts, the wars against the Goths were replete with acts of insubordination (Consid´erations: Montesquieu 1964, p. 473). 18

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The spirit of nations Whether in narrating particular historical events or in broader claims about France’s political identity or that of nations worldwide, Montesquieu was consistent in depicting the south in sharp contrast to the north, the Roman temperament as opposite to the barbarian one, and his native country as all but a happy integration of both. Moreover, much of what he said about the south, even when initially seemingly complimentary, led to claims about its inherent submissiveness, while what he said about the north, even when he seemed to be critical, led to its exaltation as the realm of freedom. Thus, having described southerners as timorous, Montesquieu went on to say that they showed a good deal more sense than the demented northerners who risked their lives in pursuit of vainglory. However, he was quick to point out that this very pursuit – which, it might be noted, had been the butt of renewed condemnation by moralists through Europe in the seventeenth century – had a vital effect: for while common sense and a balanced frame of mind in the southerners still gave rise to servitude as an eventual consequence, the derangement of the northerners produced liberty; similarly, the strength of the minds of the former lessened as that of the latter grew, since servitude destroyed the mind whereas freedom fortified it. It was but a small step in his argument that led Montesquieu to proceed to link Protestantism and the advancement of learning to the northern European predilection for individual liberty (Sur les esprits et les caract`eres: 1964, pp. 493–4). 3

Voltaire and the English question

Discussions of the aptness of the Roman model were obviously not confined to France. Montesquieu himself compared the Roman and the English constitutions and was not alone in so doing. Voltaire, whose views may be profitably juxtaposed to those of Montesquieu, opened his first letter on the subject of England’s political institutions, ‘Sur le Parlement’, by noting how very fond the English Members of Parliament were of comparing themselves to the ancient Romans. The rest of this, the eighth of his highly influential Lettres philosophiques (first published in an English translation, as Letters concerning the English Nation, in 1733, and burnt by order of the parlement of Paris when published in French in 1734), endeavours to demonstrate the total inappropriateness of the analogy. The Romans never fought one another over minor differences in religious practices, nor by the same token had their civil wars resulted in anything other than further enslavement. Those of England had led to increased liberty. Only the English had regulated the power of their kings by resisting them to such an extent that they 19

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The ancien r´egime and its critics were now graced by a wise government whose prince ‘all powerful to do good, has his hands tied to do evil, where lords are great without insolence and without vassals, and where the people partakes of government without tumult’, phrases he was not alone in borrowing from F´enelon (Voltaire 1964b, p. 55). The balance of power between the two Houses of Parliament, over which the king presided, could not place the English government in greater contrast to that of the Romans.8 The Roman senate and the plebeians had been in perpetual conflict, as the one strove to distance the other from government and did so through imperial expansion. England, by contrast, had no need of such a remedy. The king held the balance between the two chambers; the country as a whole was not only jealous of its liberty, but also eager to contain the ambitions of expansionist neighbouring nations. Voltaire’s Lettres philosophiques were to have a great impact on both the French and English nations’ self-perceptions. While the Lettres do not in themselves bear comparison in either breadth or analytical depth to L’Esprit des lois, when read in the light of Voltaire’s other works – especially Le si`ecle de Louis XIV (1751), the Essai sur les moeurs et l’esprit des nations (Essay on the Mores and Spirits of Nations, 1756), the Dictionnaire philosophique (1764), and the Histoire du parlement de Paris (1769) – they nevertheless provide a useful counterpart to Montesquieu’s views on both nations. The England depicted by Voltaire was the land which was quick to adopt Lady Mary Wortley Montagu’s introduction of smallpox inoculation following her residence in Turkey; it was the birthplace of Bacon (‘the greatest experimentalist’), Locke (‘the wisest man’), and Newton (‘the greatest of men’), in contrast to the country of Descartes (‘who had spread greater errors than he had dispelled’), Malebranche (‘whose illusions were nothing short of sublime’), the cynical La Rochefoucauld, and the sceptical Montaigne. The partisanship of Voltaire’s idealisation of England did not lessen its impact, any more than did Montesquieu’s. Both authors helped propagate the view that England exemplified in modern times the causal interconnection between commerce, science, military might, religious toleration, liberty, and a stable and prosperous government. What Voltaire did not glorify were the barbarians and their reputed legacy. According to him, neither in England nor in France did the spirit of liberty owe anything to the invading hordes’ insubordination and independence. He spoke of the legitimate power of the king in France and of that of the 8 Montesquieu and Voltaire constantly refer to ‘England’ and it is indeed to the ancient English constitution and its development that they refer; however, from the Union of England with Scotland in 1707, England was part of a new political entity, Britain.

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The spirit of nations king and the people in England as having eroded the lawless supremacy of the feudal barons, and he was keen to stress in the ninth letter that the happy balance between the Commons, the Lords, and the king was a recent phenomenon which owed very little to a so-called ‘ancient constitution’, deriding the idea that Magna Carta enshrined the freedom of Englishmen. Unlike the civil wars in France, which had had no purpose beyond factionalism and sedition for their own sakes, the English Civil War had had liberty as its object and parliament had had a clear conception of its own intentions and how to secure them (a subject Voltaire had already addressed in English in his Essay on Civil Wars of 1727). Prior to that conflict, England had not been essentially freer than any other European country. Over the centuries, however, successive kings had checked the power of the barons. This, combined with the slow acquisition of land by commoners and their gradual enrichment, had laid the ground for liberty in England. Voltaire made much of the extent to which the Lords were constrained by the Commons and all subjected to a single tax on land. For this tax, being neither onerous nor unfair, encouraged the growing number of rich ‘peasants’ to remain on the land where they did not have cause to fear displaying their wealth. This said, England’s wealth was owed above all to commerce, and it was commerce which, in his tenth letter, Voltaire claimed had contributed to freeing the English, while this same liberty had in turn benefited commerce, thereby building the greatness of the state and England’s mastery of the seas. Hence merchants who, unlike their French or German counterparts, were highly esteemed by their compatriots at all levels, were rightly proud of their achievements and could, with some justice, compare themselves to Roman citizens. Having praised nearly all things English and, more overtly than not, criticised almost all aspects of his native country, Voltaire left his readers in no doubt about the lessons which could be learned by anyone concerned to increase the power and wealth of a nation. Liberty, especially freedom of expression, and religious toleration went hand in hand with commerce, military might, and scientific advance. What is more, in dismissing the idea of the ancient provenance of the institutional guarantees of liberty in England, Voltaire simplified the issue of its establishment or fostering elsewhere. He was to use similar argumentative strategies in his Histoire du parlement de Paris by stressing the vicissitudes of all European political systems, emphasising discontinuities in legislative practices, and undermining the notion that the French parlements in particular had a long history and enduring conventions and aims. Instead he portrayed them as having been haphazard in their 21

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The ancien r´egime and its critics composition, venal, often ignorant of, or uninterested in, the good of the nation as a whole, and subservient to factional or regal power, sometimes also to Rome. This purported history of the parlement of Paris was in fact a history of the tribulations of the monarchy until the reign of Henri IV and his minister Sully. The same is true of his account of the meetings of the Estates General. When Voltaire related the convoking at Rouen in 1596 of what he called ‘a kind of estates general under the name of an assembly of notables’, he spelled out a point made throughout the work, namely that ‘it is quite easy to see from all these different convocations that there is nothing fixed in France’; for him, ‘these were not the ancient parlements of the kingdom, which all the noble warriors attended by right’ (Voltaire 2005, p. 354). Nor were they the diets of the empire, the estates of Sweden, the cortes of Spain, or the parliaments of England, for these, he stressed, had their membership fixed by the laws. By contrast, any man of substance who could undertake the trip to Rouen was admitted to the estates. In practice the Estates General could bear neither the constitutional nor symbolic weight placed on it by the advocates of limited monarchy. The lack of fixity and the absence of the rule of law were, for Voltaire, characteristic features of a nation marked by privil`eges, that is, dispensations, generally granted to aristocrats, exempting them from legal obligations and constraints. Unreserved praise and respect for the parlement of Paris is displayed in this work only in relation to its persistent refusal to ratify the decrees of the Council of Trent and its resistance to Rome’s authority in secular matters (Voltaire 2005, pp. 361, 460–2). Here Voltaire echoed Montesquieu in deploring the papacy’s persistent attempts to violate French sovereignty. To have signed those decrees would have brought on France the shame of a subjected nation, Voltaire argued, and the issue of national sovereignty is the background for much of his long harangue against the church. On the need to keep ultramontanism in check and thereby the separation of the state and church, as well as on the civil perils of religious superstition, the utility and happiness engendered by religious toleration, and the natural right to freedom of conscience, the two great anglophiles of the century were agreed. To emulate England was unquestionably desirable for Voltaire. This was ultimately a question of administration from above; it was also a matter of luck, to which political reality set what at times were insurmountable limits. Not surprisingly, in a century that witnessed a resurgence of admiration for Henri IV, Voltaire, himself the author of an epic poem La Henriade (1723; 1728), thought much hung on the quality of any given ruler and his or her 22

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The spirit of nations advisers. Anne of Austria’s regency (1643–51), for instance, would have been tranquil and absolute, in his view, had there been a Sully or a Colbert to administer France’s finances. Even so, he doubted whether either of these two administrative geniuses would have been able to attend to the current financial chaos, surmount the prejudices of the nation, establish a fair system of taxation, encourage both commerce and agriculture, ‘and do finally what is done in England’ (Voltaire 2005, p. 434; my emphasis). As things were, Voltaire stressed that France was very different from her neighbour across the Channel. Though he thought them regrettable for the most part, there were aspects of this difference that he clearly would not have eradicated. That the parlement of Paris bore no resemblance to the English parliament (Voltaire 2005, p. 442), and that it pursued only its often ridiculously narrow self-interest, were points on which he insisted; but while the latter fact was obviously deplorable, the former was not a cause for lament. Indeed, Voltaire used it, as he did the parlement’s history (as he presented it) to undermine the court’s authority. Its tribulations, the precariousness of its standing, and the uncertainty surrounding some of its procedures were all invoked by him to belittle the parlement in the eyes of his readers. In particular, he made much of the continual arguments over orders of precedence in the parlement between, on the one hand, France’s nobility of ancient lineage and, on the other, the nobility of the robe,9 that is, those who had bought their offices; and while the ancient aristocracy in his portrayal tended to lose little of its dignity and that of the robe left to shoulder most of the ridicule, he used the conflicts to conclude ‘that it is only in France that the rights of these bodies thus float in uncertainty’ and that ‘each step one takes in the history of France proves, as we have already seen, that almost nothing was settled in a uniform and stable manner, and that chance and the short-term interest of passing whims, were often the legislators’ (Voltaire 2005, p. 467). According to Voltaire, the parlement, far from being like the Estates General and an integral part of government, as it seemed to see itself, was a precarious institution of questionable merit. The status of France’s parlements and, indeed, the source and extent of regal authority more generally, were subjects on which sixteenth- and seventeenth-century political writers throughout Europe had expressed views. What is more, the very idea of the reality of absolute power had itself not gone uncontested within these deliberations. Thus, Leibniz, disputing Hobbes’s notion that sovereignty must be unitary or else anarchy 9 In French, the noblesse d’´ep´ee and noblesse de robe.

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The ancien r´egime and its critics would ensue, argued in 1677 that such a unitary conception of state power had never existed in practice and all European states admitted of a degree of division of power. Nor was it the case that they were in constant political turmoil as a result. Leibniz further challenged the cognate idea that an empire such as the Holy Roman Empire was in any sense unnatural or ‘monstrous’, as Pufendorf had put it. Combining these several points, he argued that if the German assemblies were indeed monstrous then he ‘would venture to say that the same monsters are being maintained by the Dutch, the Poles and the English, even by the Spanish and the French’ (Caesarinus F¨urstenerius: Leibniz 1988, p. 119). He also noted that ‘half of France consists of provinces called les pays des Etats, like Lesser Brittany, Gallia Narbonensis, the county of Provence, the dukedom of Burgundy, where the king certainly cannot exact extraordinary tributes with any more right than can the king of England in his realm’, adding, ‘anything further, exceeding custom or law, can have force only if it succeeds in the king’s councils’. Not even the emperor of Turkey, Leibniz went on, enjoyed absolute supremacy, concluding, ‘therefore Hobbesian empires, I think, exist neither among civilised peoples nor among barbarians, and I consider them neither possible nor desirable, unless those who must have supreme power are gifted with angelic virtues’ (Leibniz 1988, pp. 119–20). Nowhere was the case for their unqualified undesirability more strongly presented than in L’Esprit des lois. That such empires could and did exist was, however, made abundantly clear. Indeed, Montesquieu, who was to treat despotism as a form of government in its own right, one driven by fear and characterised by the absence of fundamental laws and, consequently, of their repositories (SL, ii.4, p. 19), saw its evil residing in more than its form; but just as Leibniz and other commentators had proved incredulous in the face of Hobbes’s notion of unitary power, so many were to deny the reality of Montesquieu’s description of despotism, arguing, as Voltaire did, that it was not a natural form of government, but rather, as the conventional view had it, an abuse or corruption of monarchical power. At stake, of course, was the status of France’s monarchy past and present. In undermining the coherence and realism of his conception of despotism, Montesquieu’s critics sought to lessen the power of the spectre the pr´esident a` mortier was holding up in warning. Like Leibniz, Voltaire contended, in his Pens´ees sur l’administration publique (Thoughts on Public Administration), that even ‘le grand Turc’ swore on the Koran to obey the laws (Voltaire 1994a, p. 221; see also Pocock 1999– 2003, i, pp. 97–119). Given that Voltaire defined liberty as the rule of law, this 24

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The spirit of nations rendered Turkey (the commonplace example of despotism in contemporary literature) no less a potential site for freedom than any other nation. That it did not qualify for admission to his list of free countries – Sweden, England, Holland, Switzerland, Geneva, Hamburg, Venice, and Genoa – was perhaps as circumstantial as France’s absence. What was beyond doubt, according to Voltaire, was that, pace Montesquieu, who made much of environmental considerations, climate was not a factor, any more than religion, mores, or customs. The best form of government, Voltaire wrote, was one in which all ranks were equally protected by the laws (1994a, p. 217). That, however, was not the bone of contention. If, as Voltaire himself claimed, partisanship was decisive in shaping the views that political commentators proffered about France’s true political nature – with ministers arguing in favour of absolute power, barons for a division of power, and so forth – the question was first and foremost one of establishing an authoritative vantage point from which a form of government could be said to be the best for contemporary France. For Voltaire, history did not deliver an unequivocal judgement on this issue; as we have already seen, he found little in France’s past to warrant conceiving of a continuous political tradition of institutionalised representation. It would be wrong to suppose that Montesquieu’s reflections on France’s history provide a clear-cut contrast. His purpose in the final part of L’Esprit des lois is no more simplistic than in the parts that precede it. His account is complex and not entirely unambiguous. As we have seen, what can be gleaned of his interest in the political history of France from his earliest political writings is an image of France with a somewhat puzzling past in that, despite having been vanquished, the Romans remained a presence within it, through law. Reading his chapters on the laws of the different waves of conquering races shows Montesquieu at pains to stress that these invaders were not themselves bereft of laws. There was no legal vacuum for Roman law to fill, nor a simple process by which one code of law supplanted earlier ones. Indeed, his exposition used a substantial number of sources and derided what he saw as simplified versions of a multifaceted legal past. The territory over which French monarchs ruled was one that had witnessed waves of invasions, each of which brought different ways of determining guilt and innocence, dealing with retribution, relations between men and women, fathers and children, property and inheritance, levies, privileges, and so forth, and of conceiving of the source of political sovereignty. Codification, the obliteration of legal particularism, rather than the devastation brought by conquests, emerged as the greatest threat to liberty in L’Esprit des lois. 25

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The ancien r´egime and its critics 4

The spirit of the laws: know thy country

‘Laws, in the widest sense, are the necessary relations which derive from the nature of things’ is the opening sentence of the first chapter of L’Esprit des lois; ‘in this sense, every being and every thing has its laws’, it continues. From God downwards, every entity is linked to the rest of creation and these connections are not random. Montesquieu’s intricate map presented an overview of the various levels of law from divine to human, although he warned that he would not treat political and civil laws separately as his purpose was to not to examine laws themselves but their spirit, that is the various relations which laws can have with various things (SL, i.3, p. 8). First to be studied was the relation which laws have (or ought to have if true to type) with what he defined as the three essential forms of government; namely republican, in which sovereign power resides with the people; monarchical, in which it is vested in one person but in accordance with established laws; and despotic, in which there are no fixed laws (see Carrithers 2001b; Paul 2001). Having, in the first ten chapters, examined the nature of republican government, both in its democratic and aristocratic forms, as well as of monarchical and despotic types of government, compared their respective principles and pedagogical, civil, criminal, and sumptuary laws, discussed how each comes to degenerate and how each provided for its defence, and raised the subject of conquest, Montesquieu devoted the next three chapters to political liberty. From this, he went on to consider the constraints climate might have on human agency and whether it and other physical factors might, partly or wholly, causally determine slavery and the condition of women (see Shklar 1987, pp. 93–110). Commerce, money, demography, and the relationship between religion and law provide the topics of another six chapters. The book’s divisions are, however, anything but rigid. England features in several chapters, Rome in many, and so do women, war, luxury, wealth, marriage, and parental authority. The culture and trade of China and Japan as well as the impact of the discovery of America on Europe, not to mention numerous historical and anthropological vignettes, and the detailed account of France’s legal history, all contribute to the making of this great didactic exercise, in which prescription and description are intertwined to convey the absolute necessity of as thorough an understanding as is humanly possible of the domain in which one proposes to act politically. It is somewhat ironic that an author who so admired Caesar and Tacitus for their brevity and thought falsehoods required volumes of explanations, including the three ‘deadening volumes’ that made up Dubos’s Histoire 26

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The spirit of nations critique de l’´etablissement de la monarchie franc¸aise dans les Gaules, should himself have written such a long book (SL, xxx.2, p. 620, xxx.23, p. 659). Although Montesquieu said he had left out the ‘details’, the sheer abundance of the various kinds of observations it contains, and the often arbitrary sequence in which they are reported, add to the challenge of seeing the whole through its parts. Yet, the whole, and not the parts, was very specifically what Montesquieu had begged the readers of his preface to judge L’Esprit des lois by. His intention could only be discerned, he had added, by ‘discovering’ the aim of the work in its entirety, and the full import of the truths it contained could only be truly gauged once their chain-like connection to each other was apprehended. Following his somewhat enigmatic opening, Montesquieu disclosed some of the hypotheses which he had tested in the writing of the work, namely, that the diversity of laws and mores did not entail that mankind was governed solely by whim and, by implication, that systems of law and patterns of social behaviour could be the object of understanding, not least because he believed each individual law to be linked to another or to depend on a more general one. He also presented some of his conclusions, namely, that only those who have the gift of seeing the entire constitution of a state are in a position to propose any changes to it; that it was important for the people to be ‘enlightened’ as the prejudices of the nation became those of the people in authority; and that the more informed one’s judgement, the more one could assess the full ramifications of any potential change, the implication being that one would be likely to desist from making it. Just as he had asked the reader in relation to his book not to fasten on single pronouncements in isolation from the rest, so he thought the mark of enlightened statesmanship consisted in the capacity to perceive the whole network of potential consequences of any one political act. Montesquieu expressed furthermore some of his most heartfelt wishes. He hoped that the work might eradicate prejudices, lead to greater love of one’s duties, prince, motherland, and laws, and induce rulers to increase their knowledge of what they legislated about. ‘Know thy country’ was effectively his injunction to them from the very beginning, and in contributing to increased national self-awareness Montesquieu claimed he was practising not a narrowly conceived virtue, but universal love. The didactic purpose of this quintessential Enlightenment work could hardly have been made clearer. Nor did its preface leave any doubt that a true apprehension of the nature of things would usher in the realisation that the scope for improvement through political change was severely limited, as Montesquieu postulated that greater insight tended to heighten perception 27

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The ancien r´egime and its critics of the nefarious consequences of the seemingly most obvious or benign legislative remedies. This said, he did not seem to wish to induce a state of enlightened political paralysis in legislators. His book begins with the claim that every aspect of the universe is governed by law, and is replete with illustrations of the constraints on human political agency as well as of acts of folly, but it also contains many an example of decisiveness and indeed greatness. It is a guide to righteous legislation and within the mirror-forprinces genre; it is a mirror for legislators, addressing the question of who they ought to strive to be and how they ought to act in their legislative capacity. Their character was crucial and as Montesquieu asserts in book 29, ‘On the Way to Compose the Laws’, chapter 1, ‘On the Spirit of the Legislator’, ‘I say it, and it seems to me that I have written this work only to prove it: the spirit of moderation should be that of the legislator’ (1989, p. 602). In arguing that moderation was an essential virtue in legislators, Montesquieu was aligning himself – at least in one respect – with the oldest school of political theory, which went as least as far back as Aristotle. By illustrating the point here through reference to judicial practice, he demonstrated that his evident love of law – which stirred or was stirred by an aesthetic response to some systems of laws, most notably feudal law (SL, xxx.1, p. 619) – came with a profound anxiety that law might ultimately destroy itself or what it made possible. Indeed, for all that he wrote about despotic government, with fear as its principle and therefore requiring very few laws (v.14, p. 59), he lavished more attention on the many ways in which law, rather than the want of it, might make for various forms of tyranny. 5

The spirit of the laws: the science of freedom

Law, Montesquieu argued, restored the equality that man initially enjoyed in the state of nature but had lost in the early stages of society, owing to his shedding a sense of his own weakness, a loss that led to the state of war (SL, viii.3, p. 114). More importantly, law engendered freedom. To study law, its history, and the spirit which emanated from it, was to study freedom – what ensured or threatened it – and placed one in the position of measuring its extent at any given time. Hence the study of the history of the world’s legal systems was of the greatest possible interest to mankind, as nothing could have served it better than to place criminal law on the surest foundation; for in a state enjoying the best possible laws, that man who is tried, sentenced, and hanged is freer than any pasha in Turkey, a 28

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The spirit of nations view which Rousseau, one of Montesquieu’s earliest and most enthusiastic followers, made the kernel of his Contrat social. It is living under civil law which makes us free and explains why princes are not free amongst themselves, for they are not governed by law, but by violence (xxvi.20, pp. 514– 15). They constrain, or are constrained by, each other. That is the brute reality of international relations. In what is probably the most Hobbesian passage of his work, Montesquieu further claimed that the duress under which agreements between nations emerged did not in any way lessen their signatories’ obligation. That freedom was the fruit of law, according to Montesquieu, and that it was uniquely enjoyed in civil society, wherein the rule of law prevailed, cannot be overstressed. What mankind knew in the state of nature was independence, not freedom – another point that was not lost on Rousseau: It is true that in democracies the people appears to do what it likes: but political liberty does not consist in doing what one wants. In a state, that is, a society in which there are laws, liberty can only consist in being able to do what one ought to want, and not to be constrained to do what one ought not to want. One must bear in mind what independence is, and what liberty is. Liberty is the right to do everything that the laws permit; and if a citizen were able to do what they prohibit, he would cease to be free, because all the others would have the same power. (SL, ix.3, p. 155; my emphasis)

As freedom was entirely dependent on the rule of law, the issue was very much the authorship and composition of laws. This is the subject and title of book xxix, and in some sense the last book of L’Esprit des lois; for while much is to be gleaned from the final two books that follow it, these belong to, and expand, a legal history of what became France, which can be found in preceding books. In book xxix, Montesquieu reiterated and brought together several of the tenets of his philosophy of law. Continuing from his opening comments about the moderation needed in legislators, he drew attention to the style in which laws are to be written, explaining that they must be models of precision as well as simplicity and thus leave little room for differing interpretations. He urged that they not be modified without sufficient reason and that any justification a law might proffer for its existence be given in an appropriate tone; it had to be honourable in every aspect. Montesquieu stressed throughout his text the importance of maintaining the dignity of law, its majesty. Indeed, one of the prime concerns exhibited in his writing was the desire to understand how laws come to lose their authority and the awe they ought to inspire (e.g. xi.11, pp. 545–6). Another was that laws ought not be taken out of the context in which they were written. Their 29

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The ancien r´egime and its critics aim could only be grasped by placing them firmly back within it (xxix.14, p. 611). Nor should laws from different legal systems be compared. It was meaningless, for instance, to compare the respective penalty for bearing false witness in France and England (xxix.11, p. 608). To judge whether laws were in conformity with reason, one had to evaluate entire legal systems and not proceed piecemeal. In legislating or in commenting on legal matters, it was necessary to seek to understand and to enter into the spirit of laws. How this was to be achieved was the overt purpose of the work as a whole. Within it, however, Montesquieu expressed a number of other worries. This included his anxiety about l’esprit de syst`eme, about which he wrote on several occasions, and especially in book xxix. Possibly because his emphasis on clarity and simplicity raised it, the question of uniformity was given its own chapter. Chapter 18 of book xxix, ‘On Ideas of Uniformity’, is but one paragraph long. Characteristically (for while the book is long, the crucial passages are pithy) it contains one of Montesquieu’s most significant pronouncements (see Courtney 1988). Ideas of uniformity, he noted, did on occasion strike great minds as they had Charlemagne, but, more often than not, they occurred to those with mediocre ones: They find in it a kind of perfection they recognize because it is impossible not to discover it: in the police the same weights, in commerce the same measures, in the state the same laws and the same religion in every part of it. But is this always and without exception appropriate? Is the ill of changing always less than the ill of suffering? And does not the greatness of genius consist rather in knowing in which cases there must be uniformity and in which differences? In China, the Chinese are governed by Chinese ceremonies, and the Tartars by Tartar ceremonies; they are, however, the people in the world which most have tranquillity as their purpose. When the citizens observe the laws, does it matter if they observe the same ones? (p. 617)

Thus Montesquieu not only thought that one should desist from comparing laws outside the legal framework in which they existed, or indeed from evaluating them outside of the specific historical context in which they originated, but he also went to great lengths to describe a legal past in which a variety of legal codes co-existed under one political umbrella and noted, for instance, the benefit brought to commerce by a Visigoth law which, given that trade brought so many different people together, stipulated that individuals be tried according to the law and by a judge of their native country (xxi.18, p. 387). Montesquieu’s dread of uniformity resonated in the writings of his nineteenth-century followers, especially Benjamin Constant, in response to the imposition of the Code Napoleon, and Alexis de Tocqueville, in the face of what he perceived to be increased 30

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The spirit of nations political centralisation. L’Esprit des lois was nothing short of a celebration of the diversity between and complexity within legal systems. Several of the examples on which Montesquieu drew to laud or deplore various laws were regulations governing the freedom of religious communities within larger political units, especially Jewish ones within Muslim or Christian countries, leaving little doubt that his argument for legal diversity was part and parcel of his plea for religious toleration. His political vision was of a world in which various levels of customs, regional practices and differences, and above all common law, were left to co-exist as they had in the past. It made for a society in which peoples of different cultures brought together by commercial activity could live and be judged and tried by the laws under which they were born. Despotism, conceived as the rule of one person in the absence or paucity of laws, was only one form of political terror; for there were at least two kinds of tyranny, according to Montesquieu, one he called ‘real’, which consisted in a violent government, the other, ‘of opinion’, ‘which was felt when those who govern establish things that run counter to a nation’s way of thinking’ (xix.3, p. 309). To understand how a nation thought, it was necessary to understand its character or esprit g´en´eral, and that in turn required historical understanding and sensibility on a grand scale, as illustrated by L’Esprit des lois; it meant taking into account all the variables, physical as well as social, that the book argued were relevant, as well as their interrelations. Thus Montesquieu devoted book xxix to explaining the necessity of ensuring that the laws of a nation be made in accordance with the mores and manners of its people or peoples; laws could, however, also contribute to shape these mores and manners provided they were very specifically tailored to them. 6

The spirit of the laws: commerce and civility

Nothing could have been further from Montesquieu’s mind than the kind of general blanket modelling of France on England which Voltaire entertained. England, because it was comparable in principle to France was, if anything, one of Montesquieu’s frequent sources of examples to be avoided (Courtney 2001b). While, for instance, he commended the English for prohibiting the confiscation of foreign ships in times of war, except in reprisal, he was quick to balance the compliment with a critical assessment when he claimed that it was against the spirit of both commerce and monarchy to allow the nobility to engage in commerce as they did across the Channel (xx.4, p. 346, xx.21, p. 350). Quite apart from his belief that liberty in 31

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The ancien r´egime and its critics England was a very precarious thing because the power of its nobility – which together with the judiciary he thought so essential to moderate monarchy – had been undermined in a number of ways, Montesquieu was at pains to stress the importance of knowing the legal and historical peculiarities of each individual nation (ii.4, pp. 18–19). This said, while his work to a large extent addressed his fears and aspirations for France, and while he urged readers to be attentive to particulars and seek to comprehend France’s specific identity, that identity could not be grasped without a mastery of general principles – in this case, the general features of moderate monarchies and the dynamics of commerce and finance. Theoretical understanding and specific historical knowledge had to be conjoined to be of any purpose. Thus he gave vent to more than one of his apprehensions when he explained that it was through ‘ignorance of both the republican and monarchical constitution’ that the Scottish financier, John Law, ‘had been one of the greatest promoters of despotism Europe had ever seen’. ‘Besides the changes he had made’, Montesquieu continued, ‘which were so abrupt, so unusual, and so unheard of, he wanted to remove the intermediary ranks and abolish the political bodies; he was dissolving the monarchy by his chimerical repayments and seemed to want to buy back the constitution itself’ (ii.4, p. 19). Montesquieu’s recurring criticisms of Law’s financial scheme, with which his writings are peppered, were part of a wider concern about the politically destabilising effects of paper credit, which in turn constituted one aspect of his interest in the movements and stability of currencies. He specifically praised France’s ancient laws for treating men of business with the distrust reserved for enemies (xi.18, p. 182). In this instance again, his point was not that France should be handicapped in the quest for wealth and the competition for it within what was the clearly growing phenomenon of international trade. The issue here was that nothing be undertaken without the moderation that could only be the outcome of a profound understanding of the many levels of interconnected economic, social, and political mechanisms involved. To continue with the question of the desirability of a commercial nobility, he called upon, amongst other sciences, social psychology, and the understanding of the benefits that could accrue to commerce and the whole nation from ensuring that while those in business could not be nobles, they could acquire noble rank (xx.20–2, pp. 349–50). What was needed was an awareness of the vanity of the French people and how, as argued in Mandeville’s Fable of the Bees (1714), which Montesquieu cited, this vanity could be socially beneficial (xix.9, p. 312). It required an appreciation of the true 32

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The spirit of nations nature of the principle of monarchy, honour, as also of the nature of false honour, measured in terms of appearances, privileges, and outward distinctions, not real moral worth or a patriotic desire for the common good; such a sense of honour as characterised the aristocracy with its ambition and its craving for distinction. This realisation had to be matched, however, with another, namely that false honour gave monarchical government vitality, and moved all the parts of the body politic, linking all as ‘each person works for the common good, believing he works only for his individual interests’ (iii.7, p. 27). All this and more was needed to avoid calamitous policies such as those that had led to the introduction of Law’s scheme. L’Esprit des lois held up a mirror to princes in which they could see what they needed to know to act responsibly. That knowledge would have been formidable had Montesquieu only presented them with a typology and analysis of governments together with a number of histories, such as of money, commerce, conquest, wars, empires, and laws of punishment and rewards, from which various lessons could be drawn. He did more, however, in asking them to endeavour to comprehend the relation of cause and effect between a multiplicity of generically different factors. Amongst these was one not usually present in works on the art of governance, namely women. Political theorists had spoken of their nature and place in society since antiquity. Many had written about illustrious women. Others, most notably Machiavelli, whom Montesquieu greatly admired, had warned princes of the dangers of maltreating them and used ancient history in support of his claim that dynasties and empires had been brought down by a single act of rape. Montesquieu wrote of the close connection between domestic servitude and specific forms of government, between the liberty of women and the liberty enjoyed in a nation as a whole, between their status and the luxury and commercial status of their country, as well as on changes in the laws concerning divorce, dowries, regal, and other rights of succession and inheritance. Even his own statement that ‘everything is closely linked together: the despotism of the prince is naturally united with the servitude of women; the liberty of women, with the spirit of monarchy’ does not fully convey the complexity of politics as he saw it, although some of the many authors who drew inspiration from him in their histories of women understood him well enough (xix.15, p. 316). Were one to know one thing alone about a state, the precise condition of women in it, one would be able to deduce everything else about it (Tomaselli 2001b). 33

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The ancien r´egime and its critics 7

The spirit of the laws: the Gothic constitution

In so far as Montesquieu appealed to history, he was fully aware that, while essential to political understanding, it could in and of itself be as dangerous as it was vital. In any event, it was not an unproblematic pursuit. ‘When one examines the records of our history and our laws’, he admitted, ‘it seems that everything is a sea and that the sea lacks even shores.’ Yet, these ‘cold, dry, insipid, and harsh’ legal and historical books had to be read, devoured even (SL, xxx.11, p. 629). They had, however, to be read critically. They had to be read with just that astuteness which their reading was alleged to generate. When Montesquieu discussed the code known as the Establishments of St Louis, he offered a glimpse of the manner in which he interpreted these arid texts. He questioned how it had been composed and by whom; what the intention behind the work was – which, incidentally, Montesquieu argued had never been intended for the entire kingdom, thus finding another occasion to undermine the idea that wide-scale legal codification was inherent to the spirit of French laws (xxviii.37, p. 589). He looked to the origins of the different laws brought together in the Establishments, which in this case mixed Roman laws with ancient French jurisprudence, something which rarely, if ever, met with Montesquieu’s approval; he also queried its authenticity at various levels. In writing or rewriting history himself, Montesquieu wanted to avoid what he thought of as the obvious partiality of historians whose respective political motivation was transparent: ‘The count of Boulainvilliers and the Abb´e Dubos have each made a system, the one seeming to be a conspiracy against the Third Estate, and the other a conspiracy against the nobility (xxx.10, p. 627; my emphasis).10 The Abb´e Dubos was a favourite object of Montesquieu’s derision as a historian, having based his system ‘on the wrong sources’, drawn ‘from poets and orators’, and misinterpreted and distorted others as well as invented facts when it suited him (SL, xxviii. 4, p. 537, xxx.12, pp. 631–2, xxx.17, p. 643). Towards the end of his work, Montesquieu even thought it necessary to devote the three last chapters of book xxx, ‘On the Theory of Feudal Laws among the Franks in their Relation with the Establishment of the Monarchy’, to the errors committed by Dubos; for, as Montesquieu remarked, he and Dubos were so diametrically opposed that only one of them could possibly be right. The dispute between them was whether the Franks had 10 For a summary of the th`ese nobiliaire and of the th`ese royale, see Ford 1953 and Keohane 1980, pp. 346–50.

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The spirit of nations entered Gaul as conquerors or whether, as Dubos saw it, they had been ‘summoned by the peoples’, and had simply taken the place and donned the mantle of the Roman emperors (xxx.24, p. 659). For Montesquieu, Clovis had truly conquered Gaul and duly subjugated it. Contrary to Dubos’s claim, he insisted further that the Franks had a system of ranks, as did the Burgundians. They had also a complex judicial order, and early France had not been like Turkey, the eighteenth-century shorthand for despotism, an amorphous people under the rule of one sole authority (xxx.25, p. 668). Montesquieu went through the evidence that Dubos used and found it wanting in every respect. Along with political bias and prejudice of one form or another, Montesquieu was also wary of the danger of anachronism. ‘To carry back to distant centuries the ideas of the century in which one lives is of all sources of error the most fertile’, he wrote (xxx.14, p. 636). In short, Montesquieu sought to establish a vantage point from which he, and legislators reading him, could be freed from the imaginative restrictions imposed not just by human nature but also by modernity. He said in his preface that greater general enlightenment would lessen the risk of ignorance and misconceptions in rulers. He clearly thought, however, that only the gifted few could intuit the general spirit of the nation and hence legislate wisely. This required in the first instance that they know their country’s history from its very beginning, but, as his critique of both Boulainvilliers and Dubos made clear, it was essential that princes and law-makers generally be informed by reliable historians. In the case of French legislators, this meant that they had to go back to the old French laws, for those laws contained the spirit of monarchy (SL, vi.10, p. 83). They had to read Tacitus and learn the ways of the first races (see Momigliano 1990, pp. 109–31). This would spell out how monarchy originated and developed from the Germanic nations which spread through the Roman Empire. Whilst in Germany the whole nation assembled, it became too dispersed to do so following their conquest of the Empire. They therefore carried their deliberation as a nation through representatives: Here is the origin of Gothic government among us. It was at first a mixture of aristocracy and monarchy. Its drawback was that the common people were slaves; it was a good government that had within itself the capacity to become better. Giving letters of emancipation became the custom, and soon the civil liberty of the people, the prerogatives of the nobility and of the clergy, and the power of the kings, were in such concert that there has never been, I believe, a government on earth as well tempered as that

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The ancien r´egime and its critics of each part of Europe during the time that this government continued to exist; and it is remarkable that the corruption of the government of a conquering people should have formed the best kind of government men have been able to devise. (SL, xi.9, pp. 167–8)

Montesquieu was wont to speak of ‘our fathers, the ancient Germans’ and wrote of them with more than a degree of fondness (SL, xv.14, p. 243). This sentiment was one that we have seen evinced in his early writings. He admired their vitality and spiritedness, and thought they enjoyed liberty of a kind and to a degree unknown by any of the other many peoples discussed in his works, not least because a people that did not cultivate land, as he insisted they did not, had greater freedom. Moreover, their kings or chiefs had very limited powers, and the Franks in Germany had no king at all (xviii.30). The ‘germe’ or essence of the history of the ‘first race’ was that while they had vassals, they did not have fiefdoms, as they did not have land, but had companions and earned their glory on the battlefields (xxx.2–4, pp. 620–2). Had the Franks in conquering Gaul established fiefdoms everywhere, the king would have had the power of a Turkish sultan (xxx.5, pp. 622–3), a claim he identified with Dubos’s position. Montesquieu insisted throughout that the Germans did not cultivate land; they were a pastoral people (xxx.6, p. 623). Most importantly, he tried to show that the barbarians were by no means lawless. They were barbarians in the sense that they were spirited and psychologically unsubdued, not in the sense that they were ignorant and lacking in rules of conduct. Indeed, their codes were very precise and included fixed fines, despite the fact that there was little money amongst them; every crime had its fixed penalty in kind. Interestingly, Montesquieu also argued that the initial impetus for regulated justice amongst the Germans was the protection of the defendant against the vengeance of the victim. It was to oblige the victim to accept reparation as decreed by the law (xxx.20, p. 651). The culprit paid the judicial cost since he benefited from it. Montesquieu explained much of early jurisprudence through the medium of this primordial intent. To return to the origins of a people and comprehend the nature, context, and purpose of its jurisprudence from its infancy was the crucial knowledge necessary to prescribe laws in accordance with the spirit of a nation. This was essential because despotism could assume two different forms, in Montesquieu’s view. It could manifest itself through the usurpation of power and the arbitrary will of one individual, to be sure, but it could also take the form of unbefitting laws. The first one he called ‘real’ despotism, consisting 36

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The spirit of nations in a violent government; the other he labelled despotism ‘of opinion’, and said, it ‘was felt when those who govern establish things that run counter to a nation’s way of thinking’ (SL, xix.3, p. 309). Had Montesquieu only feared the one, he might conceivably be placed within the debate dividing the advocates of the th`ese nobiliaire from those of the th`ese royale (although he seemed to reject both positions in any case), but he did not worry only about the legitimacy of those making and executing laws, perhaps the predominant preoccupation of some of those most indebted to him, such as Rousseau. Montesquieu was concerned at least as much with the nature and form of the laws’ content; or, to quote again the title of one of the final books, book xxix, he was as anxious about ‘the way to compose the laws’ as about their authorship. It is in his effort to attend to the much more difficult, because less tangible, question of how this should be done that he distinguished himself from his immediate contemporaries and most political theorists ever since. History, on his account, was the handmaiden of the legislator, and within it pride of place had to be given to the history of laws and everything relevant to their individual conception. This included a genuine study of mores and the manner in which laws followed mores and mores laws (SL, xix.26, p. 325). It required an understanding of climate and geography. Legislators, moreover, had to be in a position to understand axioms of the kind provided, for instance, in Montesquieu’s summary of his discussion of luxury, namely, that ‘republics end in luxury; monarchies in poverty’ (vii.4, p. 100). Again they had to know that a ‘monarchical state should be of a medium size’ (viii.17, p. 125). They had to understand the history and fluctuations of currencies. They had to be aware of the dynamics of population growth and decline, and of the role of education and religion. They had to be sensitive to the status of women and know the limits of legislation. All this had to be mastered, and much more besides. Montesquieu was committed to the view that the material and human world could in principle be comprehended and that it was incumbent on us to undertake its study. History also had to be used in a more traditional way, namely, to come to grips with human nature, and as a source of models of good governance and hence good princes. It taught moderation and also the importance of good fortune. To create a moderate government was a delicate task: In order to form a moderate government, one must combine powers, regulate them, temper them, make them act; one must give one power a ballast, so to speak, to put it in a position to resist another; this is a masterpiece of legislation that chance rarely produces and prudence is rarely allowed to produce. (SL, v.14, p. 63)

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The ancien r´egime and its critics This difficulty explained why, despite mankind’s love of liberty and hatred of violence, most peoples lived under despotic regimes. A despotic government, Montesquieu wrote by way of contrast, ‘leaps to view, so to speak; it is uniform throughout; as only passions are needed to establish it, and everyone is good enough for that’ (SL, v.14, p. 63; my emphasis). Awareness and recognition of the force of the passions was indispensable. For it was essential to work with the passions and ensure that self-interest resulted in the common good. Moreover, self-awareness was important, for like Voltaire, Montesquieu thought laws ‘always meet the passions and prejudices of the legislator’, but he added that ‘sometimes they pass through and are coloured; sometimes they remain there and are incorporated’ (xxix.19, p. 618). It was ‘a misfortune attached to the human condition, [that] great men who are moderate are rare’ and that ‘it is easier to find extremely virtuous people than extremely wise men’ (xxviii.41, p. 595). Nevertheless, he singled out some wise men, and for all his emphasis on law, he had much to say about individuals. Despite the weight he gave to causal relations between the multitude of factors which made up the spirit of nations, he recognised that some rare individuals could intuit what was required of them to shape their political world. Of the men and women he singled out in his account, he lavished most praise on Charlemagne, who had managed to keep the nobility in check and made his children models of obedience. He made and enforced admirable laws: His genius spread over all the parts of the empire. One sees in the laws of this prince a spirit of foresight that includes everything and a certain force that carries everything along . . . Vast in his plans, simple in executing them, he, more than anyone, had to a high degree the art of doing the greatest things with ease and the difficult ones promptly . . . Never did a prince better know how to brave danger; never did a prince better know how to avoid it. He mocked all perils, and particularly those which great conquerors almost always undergo; I mean conspiracies. This prodigious prince was extremely moderate; his character gentle, his manners simple; he loved to live among the people of his court . . . He regulated his expenditures admirably; he developed his domains wisely, attentively, and economically; the father of a family could learn from his laws how to govern his household. (xxxi.18, pp. 697–8)

Much could be said here by way of comparison and contrast between Montesquieu and those who from the Renaissance onwards had written like him about the virtues of great princes and the true nature of glory. In his commendation of Charlemagne’s simplicity and his parsimony, this passage brings F´enelon’s comparable praise of St Louis, for instance, particularly to mind. However, notwithstanding the great trials he overcame, 38

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The spirit of nations Charlemagne did not have to contend with what Montesquieu saw as the unique challenge faced by eighteenth-century princes. They had to comprehend the unprecedented nature of modernity, socially, militarily, and commercially (SL, xxi.21, pp. 392–3). Montesquieu did not simplify their task. On the contrary, he warned them, and all who might advise them, of the terrifying complexity of it all.11 11 For their comments on a draft of this chapter I would like to express my gratitude to Istvan Hont, as well as to Mark Goldie, Robert Tombs, and Robert Wokler.

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2 The English system of liberty mar k g ol d i e

1

The Revolution debate

In the winter of 1688 King James II was deposed. Within months of the offer of the crown to William III commentators sensed that a decisive shift had occurred in what it was possible to say in public about the nature of kingship. Remarking on a speech by a judge to the effect that ‘kings are made by the people’, Robert Harley declared that this ‘would have been high treason eighteen months ago’.1 The enthusiasts for the Revolution were clear about what had been achieved. The earl of Stamford told a grand jury that Britain had been liberated from ‘tyranny and slavery a` la mode de France’ (RLP, i, p. 54).2 Grateful contemplation of the ‘wonderful and happy Revolution’ of 1688 quickly spawned complacent and repetitive clich´es about Britannic liberty which reverberated down the succeeding decades. They were echoed in Montesquieu’s celebrated eulogy on the ‘beautiful’ system of the English (SL, xi.6). All Europe, declared the American James Otis in 1764, was ‘enraptured with the beauties of the civil constitution of Great Britain’ (RLP, iii, p. 8). Commentators agreed that the Revolution had replaced absolute with limited monarchy. The king was ‘only a sort of sheriff to execute [parliament’s] orders’, observed the bishop of Derry in 1700 (qu. Rubini 1967, p. 202). Daniel Defoe told the readers of his newspaper The Review that the Revolution had thrown off the ‘absurdities’ of the divine right of kings and erected monarchy ‘upon the foundation of parliamentary limitation’ (30 Aug. 1705). The Revolution, it was said, had rebalanced the constitution into its rightful harmony, embracing the three classical forms of government – monarchy, aristocracy, and democracy – incarnated in king, Lords, and Commons. This became a ubiquitous shibboleth, whereas in 1 Historical Manuscripts Commission, Portland, iii, p. 439. 2 In this chapter, RLP stands for The Reception of Locke’s Politics, ed. Mark Goldie, 6 vols. (London, 1999).

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The English system of liberty pre-Revolution England it had been a seditious doctrine, formally condemned by Oxford University in its book-burning of 1683. The Revolution was said to have conferred many benefits. It made freedom of the press a ‘palladium’ of liberty. It drew the sting of religious violence, quelling both the repressiveness of church hierarchies and the fanaticism of apocalyptic puritanism. All of this laudation was accompanied by a new historical commonplace that the Stuart century had been a train of ‘tyrannical proceedings’ and ‘popish bigotry’. Such a view, conspicuous for example in Paul Rapin’s popular History of England (1723–5), was endorsed by Viscount Bolingbroke in his Remarks on the History of England (1730–1), and it was not seriously challenged until the publication of David Hume’s History of England in 1754–62 (Forbes 1975). The belief that the light of liberty shone in Britain was increasingly given a manichean sharpness and a Protestant evangelical fervour under the pressure of the second Hundred Years War which Britain fought against France after 1688. ‘Protestant, free, virtuous, united, Christian England’ would withstand ‘the whole force of slavish, bigoted, unchristian popery, risen up against her’, announced the London Daily Post (18 Apr. 1739). The European foreigners’ world of ‘Bastilles and inquisitions’ – as Henry Fielding put it – was scarcely a whit removed from the slavish despotism identified as endemic among ‘Asiaticks’ (Acherley 1727, p. 14; Lamoine 1992, p. 336). The English system of liberty was given cosmic significance when it was discovered to be implied in the very structure of God’s government of the whole of creation, a theme explored in John Desaguliers’s The Newtonian System of the World the Best Model of Government (1728) (Force 1985). Even so, amid all this celebration, countervailing voices were no less emphatic, and the era after 1688 was not short of jeremiads on the fragility of liberty. Much of this chapter will be devoted to examining the gamut of protests that arose against the post-Revolution state. ‘The late happy Revolution . . . was not so highly beneficial to us, as was by some expected’, complained William Stephens (1696, p. 10). At the heart of these protests lay the dismal consequences that were said to have arisen from the doctrine and practice of the sovereignty of crown-in-parliament. Many came to believe that the absolute power of kings had merely been replaced by the absolute power of parliaments. In 1742 The Craftsman argued that ‘a parliamentary yoke is the worst of all yokes, and that yoke is the only one we have, in reality, to fear’. The problem of the Revolution constitution may be illustrated by an analogy. The great offices of state in England, such as the treasury or the 41

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The ancien r´egime and its critics chancellorship, were sometimes ‘put into commission’. They retained all their powers, but were managed by a committee instead of a single person. After the Revolution the monarchy itself was, so to speak, put into commission. The crown retained its formal potency, but its powers were increasingly managed by a cabinet of ministers who commanded a majority in parliament. In the sphere of political doctrine, this development had a peculiar effect. The theory of sovereignty, fashioned for the defence of monarchs by Jean Bodin, Sir Robert Filmer, and Thomas Hobbes, and vaunted by Civil War Royalists in the 1640s and by high Tories in the 1680s, was transmuted into the dogma of the supremacy of the Westminster parliament, which was then handed down by Revolution Whigs and Revolution Tories to the legal positivists of the nineteenth century, such as John Austin and Albert Dicey. Every state must have a power that is ‘absolute, omnipotent, uncontrollable, arbitrary, despotic’: this ‘is called the sovereign’, and in Britain the sovereign is parliament. Such was William Paley’s summation of eighteenth-century verities in 1785 (Paley 1860, p. 136). According to a tract of 1696, ‘nothing is impossible in England to a parliament’ (Anon. 1696, p. 12). Thus the Revolution had proved Hobbes right, for he had been careful to say that absolute sovereignty might as readily lie in a corporate body as in a single person. As a consequence of the speedy adoption after 1688 of the idea of absolute parliamentary supremacy, the anxieties of those who were sceptical of the powers exercised by the English state came to focus on the tendency for the crown-in-parliament to be managed by a ‘junto’ of ministers and courtiers, England’s ‘Venetian oligarchy’, which was armed with immense powers of patronage and purse. Baron d’Holbach observed in 1765 that the English state achieved through patronage what the French state achieved through despotism. The crucial issue became the relationship between overweening executive power on the one hand, and the rights of the wider political community, both within parliament and outside it, on the other. Simultaneously, however, there also emerged a vigorous defence of the legitimacy of executive control in a parliamentary system of liberty. Accordingly, the central theme in post-Revolution political thought is the dialogue between a dominant doctrine of parliamentary sovereignty, coupled with a doctrine of the efficacy of executive power, and a broad-based culture of opposition which challenged those ideas. The political culture of opposition took many forms: a dynastic, Jacobite revanche on behalf of the hereditary right of the fallen House of Stuart; an ecclesiastical rejection of secular supremacy over the church; a repudiation of metropolitan empire by peripheral states and 42

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The English system of liberty colonies, particularly Scotland and Ireland, and later North America; a theory of popular sovereignty that placed supremacy directly in the community instead of in parliament; and a quasi-republican demand for the wholesale devolution of central executive power. Each of these oppositional voices will be surveyed here.3 2

The Allegiance Controversy and the Jacobites

The problem of the ‘parliamentary yoke’ was not, however, immediately apparent in the aftermath of the Revolution. The first task of the friends and enemies of the Revolution was to vindicate or repudiate the new regime itself. The language of the Allegiance Controversy of 1689–91 belonged firmly to the political theory of resistance bred in the European Reformation and its wars of religion.4 The Calvinists of late sixteenth-century France and Scotland had declared decisively in favour of a right of revolution against tyrants, and that claim had subsequently been reiterated by defenders of the English rebellion of the 1640s. This tradition was invoked once again in 1689, when Philippe du Plessis Mornay’s Vindication against Tyrants (1579) and George Buchanan’s Rights of the Kingdom of Scotland (1579), together with Philip Hunton’s Treatise of Monarchy (1643), and John Milton’s Tenure of Kings and Magistrates (1649), were all republished. John Locke’s Two Treatises of Government, published in the autumn of 1689, recapitulated that tradition. Meanwhile, more historically minded Whigs elaborated on the depositions of the medieval kings Edward II and Richard II. This broad stream of ideas also inspired those few republicans, like the former Leveller, John Wildman, who believed that the moment of ‘dissolution’ that occurred when James II fled should be seized to deprive kingship of virtually all its powers. In Some Remarks upon Government (1689), Wildman envisaged a gentry commonwealth in which magistrates, army officers, clergy, and officials in town and parish would all be elected by particular constituencies rather than appointed from above by the crown (Goldie 1980a). Yet the events of 1688–9 were not only justified in terms of the Calvinist theory of revolution. It was vital for the success of the new regime that the Revolution was portrayed in more moderate and ambiguous terms. This 3 For contrasting surveys of British political thought in this period see Clark 1994a; Dickinson 1970; Goldsmith 1994; Gunn 1983; Ihalainen 1999; Kenyon 1977; Phillipson 1993a; Pocock 1985, 1993a. See also ch. 11 below. 4 On the political thought of the Allegiance Controversy see Goldie 1977, 1980b, 1991a; Kenyon 1977; Nenner 1995; Straka 1962; Worden 1991. For Leibniz’s role see Jolley 1975; Riley 1973.

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The ancien r´egime and its critics was partly because the event resembled less a domestic rebellion than an invasion by a foreign prince, and crucially because of the need to placate the Tories who were inured to the doctrine of ‘passive obedience and nonresistance’ and to abhorrence of the ‘king-killing doctrines’ they associated with puritans and Jesuits. The need to assuage the troubled consciences of conservatives ensured that the Allegiance Controversy became chiefly an exercise in casuistry: the resolving of conscientious scruples by the application of general moral principles to equivocal practical contingencies. The matter was made pressing by the imposition of a new oath of allegiance to King William and Queen Mary, demanded of those who had previously solemnly sworn fealty to James II. Once again, an earlier debate was invoked, that surrounding the Engagement Controversy of 1649, when people had been required to swear allegiance to the English republic in the aftermath of the execution of Charles I. Anthony Ascham’s Of the Confusions and Revolutions of Government (1649) was republished, advising stoical acquiescence to power and the dispositions of divine providence. A theory of the right of revolution was unpalatable to many, perhaps most, who confronted the enormity of the Revolution, and a series of redescriptions of the events of 1688–9 avoided the necessity for such a doctrine. The claim that James II had abdicated by his flight to France circumvented the claim that the nation had a right to depose its monarch.5 The description of the Revolution as a just war waged by one sovereign prince against another likewise bypassed the notion that subjects could overthrow their monarchs. The principle of hereditary right was protected by the fiction that the newborn son of James II, the prince of Wales, was an impostor, smuggled into the queen’s bedchamber in a warming pan. Hence, the rightful heir of James was his elder daughter Mary who, in a judicious invention of a dual monarchy in 1689, was enthroned alongside her husband William of Orange. A yet further device for assuaging consciences was the drawing of a distinction between de jure and de facto rulers. This sidestepped the question of dynastic legitimacy and allowed for a provisional allegiance to be paid to the monarch ‘in possession’. Such allegiance was sanctioned by the new oath of allegiance, which delicately omitted the traditional designation of the monarch as ‘rightful and lawful’. Various intellectual resources were required to sustain these positions. The account of the nature of allegiance offered by the distinguished jurist 5 However, Slaughter 1981 argues that ‘abdicate’ was often used to mean a thing done to the king. An example is Toland: ‘James II was justly abdicated . . . because he was an enemy of the people’ (Toland 1697, p. 14) Cf. Miller 1982.

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The English system of liberty Sir Edward Coke and the oath-taking casuistry of the theologian Robert Sanderson were called in aid. So also the laws of just war in Hugo Grotius’s On the Laws of War and Peace (1625), which were skilfully deployed by Edmund Bohun in his History of the Desertion (1689) and by William King in his State of the Protestants of Ireland (1691), to show that William of Orange was a legitimate conqueror of James II, but not of the peoples of England and Ireland. No less valuable was the formula provided by Hobbes in Leviathan (1651) that allegiance is owed to whichever power has the capacity to protect us. Isaac Newton, MP for Cambridge University, was one of those who found the Hobbesian formula persuasive: ‘Allegiance and protection are always mutual and therefore when King James ceased to protect us we ceased to owe him allegiance’ (Newton 1959, p. 10). It was a thesis which was vulnerable to the charge that it opportunistically embraced power without right. Its most notorious exponent was the high Tory clergyman, William Sherlock, who wrote a series of tracts defending allegiance to a de facto regime and was rewarded with ecclesiastical promotion for his conversion to the Revolution. Despite protesting in one of his title pages that he was not ‘asserting the principles of Mr Hobbes’, he nevertheless attracted a tide of accusations that he had resorted to naked ‘Hobbism’ (Sherlock 1691). All this equivocation saved England – though not Ireland or Scotland – from a new civil war, for it bonded Tories to the Revolution. To hardline Whigs it was evasive nonsense: for them only a crystalline theory of revolution would do. They – Locke among them – pressed for an enhanced oath of allegiance, with the ‘rightful and lawful’ clause reinstated. At the opposite end of the political spectrum, Jacobites and Nonjurors also judged that Tory casuistry amounted to hypocritical apostasy from old Royalist principles. They categorically repudiated the Revolution and upheld the dynastic claim of James II and his heirs. Such tracts as Abednego Seller’s History of Passive Obedience (1689) were laments for an Anglican Royalist catechism now brutally betrayed by the Revolution Tories. The Jacobites sustained a powerful ideological tradition until their decisive military defeat on the battlefield of Culloden in Scotland in 1746. In large measure, Jacobite political theory was a direct continuation of the absolutist doctrines that had been taught on behalf of the House of Stuart throughout the seventeenth century. It was a m´elange of Bodin’s idea of monarchical sovereignty, Sir Robert Filmer’s account of the patriarchal origins of kingship, and scriptural defences of the subject’s duty of Christ-like passive obedience. Its cardinal claims were that the authority conferred by God upon Adam, the first husband, father, and king, was the archetype of 45

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The ancien r´egime and its critics all legitimate human authority; that the hereditary right of royal succession was unimpeachable by any human institution; that every state must have a sovereign authority, which could not be mixed or divided or shared; and that St Paul in the Epistle to the Romans had insisted that ‘the powers that be are ordained of God’ and that ‘he that resists shall receive damnation’ (Romans 13:1). These were doctrines which were fulsomely expressed week after week in Charles Leslie’s influential journal The Rehearsal during Queen Anne’s reign in the early 1700s.6 Such ideas were, however, far from being unalterably fixed in an idiom established by King James I and Sir Robert Filmer early in the seventeenth century, for it was an ideology capable of reformulation for Enlightenment audiences. Revision might take the form of a use of Cartesian logic, in the elaborate ‘lemma’, ‘propositions’, and ‘axioms’ to be found in Matthias Earbery’s Elements of Policy, Civil and Ecclesiastical, in a Mathematical Method (1716), or in the (almost Kantian) deductivism of George Berkeley’s Passive Obedience (1712), in which non-resistance was demonstrated to be a logical entailment of the idea of sovereignty. Alternatively, it could take the form of fictional allegories depicting the education of a virtuous patriot prince. These took their inspiration from F´enelon’s T´el´emaque (1699) and the most notable of them was Andrew Ramsay’s Voyages of Cyrus (1727). Moreover, the Jacobites became adept at appropriating the language of liberty against oppression. A rich popular culture of Jacobitism arose, expressed in signs and symbols, in martyrology, and in riotous charivari against post-Revolution ‘tyranny’. For decades the Jacobite cause became a vehicle for resentment against the Revolution regime, against ‘Dutch’ and Hanoverian taxes and soldiery, and the suppression of civil liberties. There was a persistent strain of what may be termed ‘Whig Jacobitism’, beginning with the Quaker William Penn, who remained loyal to James II because he had conferred religious toleration on Protestant Dissenters, and continuing through those factions at the Jacobite Court in exile which were willing to champion popular rights and civil liberties against the post-Revolution state. It was even possible for Jacobite newspapers in the 1710s and 1720s to make use of Locke, by turning Whig arguments against the Whig state. A cartoon of 1749 depicted the Jacobite claimant Prince Charles (the ‘Young Pretender’) studiously reading in a library, with ‘Locke’ among the books on the shelves. Jacobitism was, therefore, by no means merely a repository for the atavistic 6 Filmerian patriarchalism had several afterlives, for example in the reaction against Tom Paine and French revolutionary doctrines in the 1790s, and in the anti-capitalist defence of slave society in the Southern United States in the 1850s (Bowles 1798; Fitzhugh 1854).

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The English system of liberty or nostalgic defence of divine right monarchy – and, as this example shows, the reception of Locke proved a complex phenomenon.7 3

The reception of Locke

The pre-eminent influence of Locke’s Two Treatises of Government (1689) in post-Revolution political thought was once a conventional textbook wisdom. His book was taken to be the classic apologia for the Revolution, the encapsulation of Whig doctrine. Locke was said to have filled the vacuum left by the collapse of the ‘divine right of kings’. Modern scholarship has drastically revised this picture, such that Lockean political thought now seems a fugitive and elusive presence, at least before the 1760s. There are several reasons for this revision. First, the discovery in the 1950s that the Two Treatises was written around 1679–82 undermined the possibility that Locke could have written his book as an apology for a revolution that had yet to occur. Secondly, Locke kept his authorship a secret until his death in 1704, and his fame, which lay chiefly with his Essay concerning Human Understanding (1689), did not for some while attach to the Two Treatises. Thirdly, the radicalism of Locke’s doctrine of the dissolution of government, his devolution of political power to the people, and the association of his book with the extreme Whigs, rendered the book an embarrassment amidst so cautious and compromising a Revolution. Fourthly, such attention as the Two Treatises began to receive was often profoundly hostile. Charles Leslie’s assault in The Rehearsal signalled the resilience of patriarchalist Toryism, an outlook by no means confined to doctrinaire Jacobites. Even when Locke did acquire renown, he tended to be part of an imprecise litany of Whig political virtue, standing alongside John Milton, James Harrington, Algernon Sidney, Marchamont Nedham, John Somers, James Tyrrell, and Benjamin Hoadly. Lastly, large doubts have been raised about the supposition that theories of ‘natural right’ and ‘social contract’ constituted the only available languages of political understanding in the eighteenth century. The political arguments of that century, we have come to see, were conducted in languages of, inter alia, political economy, empire, ancient constitutionalism, natural sociability, and civic humanism; and none of these characterise Locke. 7 On Jacobite political thought see Berman 1986; Chapman 1984; Cherry 1950; Clark 1994a; Cruickshanks 1982; Erskine-Hill 1975, 1979, 1998; Henderson 1952; McLynn 1985; Monod 1989; Pittock 1991, 1994; Sack 1993; Szechi 1997.

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The ancien r´egime and its critics This revisionism is salutary, but it is overstated. It is clear that in the first decade of the eighteenth century ‘Locke on government’ did in fact achieve distinctive status. In 1703 Leslie was provoked to his assault by the reputation of ‘the great L—k’ who, dangerously, ‘makes the consent of every individual necessary’ (RLP, ii, p. 62). In 1709 a cartoon depicted the Whig polemicist Benjamin Hoadly at his writing desk with ‘Locke on government’ on his bookshelf. By 1716 the Two Treatises was quoted in parliament. Locke’s influence was facilitated by informal means of transmission. The anonymous Vox Populi, Vox Dei (1709) was a bestselling anthology comprising extracts from Whig-approved texts, including the Two Treatises. Extracts from the Two Treatises also appeared in John Toland’s Anglia Libera (1701) and elsewhere. Some early readers of the Two Treatises saw it as a handbook for political education, designed to wean the gentry elite from the dangerous (and largely clerical) absurdities of pre-Revolution doctrine. It represented a guide to ‘polite’ citizenship, free of the sycophantic dogmas of absolutist Court society. This role is explicit in William Atwood’s Fundamental Constitution of the English Government (1690) which urged that people should ‘take every morning some pages of the Two Treatises of Government, for an effectual catholicon against nonsense and absurdities’ (RLP, i, p. 39). The Two Treatises continued to be an instrument of instruction against the follies of the ‘divine right of kings’ in Hoadly’s works and in John Shute Barrington’s The Revolution and Anti-Revolution Principles Stated (1714). In the meantime, the Two Treatises entered a tradition of academic consideration. As early as 1702–3, Gershom Carmichael was using it as a counterpoint to Samuel Pufendorf in his lectures at the University of Glasgow (see ch. 10 below). On the Continent of Europe, the book became established in the canon of natural jurisprudence and was extensively used by Jean Barbeyrac in the annotations to his edition of Pufendorf’s On the Law of Nature and Nations (1706; English trans., 1717). By 1725 Locke’s book was being put to use in North America. Citing the fifth chapter of the Second Treatise, with its argument that labour creates property rights, John Bulkley argued against native American claims to property in American land, on the ground that, through the natives’ lack of tillage – they were mere roaming hunter-gatherers – their lands remained common wastes until cultivated by European labour (RLP, vi, pp. 191–223). Locke’s influence as a political theorist, moreover, was not confined to the Two Treatises. Of perhaps unexpected importance was his Some Considerations of the Consequences of the Lowering of Interest, published in 1692, which was frequently cited on fiscal questions, and on the relationship between land and 48

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The English system of liberty trade. Viscount Bolingbroke, in his anti-Walpolean newspaper The Craftsman, quoted it in a discussion of the importance of maintaining the slave trade with America: ‘the judicious Mr Locke’ had warned that a trade once lost is hard to retrieve (RLP, vi, pp. 229–30). Locke’s Essay concerning Human Understanding was seen by both its friends and critics to carry political implications embedded in its epistemology, its moral philosophy, and its implied ecclesiology. Locke’s reputation was drawn thereby into a vortex of polemic about the claims of Christianity as well as claims to authority by churches and priesthoods. In 1707 Locke was denounced from a London pulpit, in a sermon to commemorate King Charles the Martyr, as an ‘agent of darkness’, his ‘principles fit for nothing, but to ruin kingdoms and commonwealths, to overturn churches, to extirpate Christianity’ (Milbourne 1707, p. 11). It was a reading probably provoked by Matthew Tindal’s shocking (and, to its critics, inaptly titled) Rights of the Christian Church (1706) which invoked Locke in mounting a comprehensive assault on the powers of the clergy. More generally, it is clear that Locke was read eclectically, so that he was not confined to a discourse of ‘natural law’ and ‘social contract’. The distinctions drawn by modern scholars between supposedly discrete political discourses, for example between the natural rights, the civic humanist, and the ancient constitutionalist traditions, do not do justice to the syncretism constantly found in post-Revolution political writing. James Tyrrell, in his compendium of Whig attitudes, Bibliotheca politica (1692–4), married the Two Treatises to a Tacitean and legal-historical vision of Saxon liberties and the ancient constitution, although Locke had himself shown little interest in historically grounded theories of liberty. This helps to explain an apparent oddity about Hume’s critique of social contract theory: he had in mind not simply Locke, but a composite Whig doctrine, which treated the idea of contract as a historical as well as an ahistorical phenomenon (Buckle and Castiglione 1991; Thompson 1977). Another type of eclecticism is found among authors whose primary intellectual resources lay among the Greeks and Romans. Walter Moyle, writing in the 1690s, applauded the Two Treatises in the midst of an account of the hero-lawgiver Lycurgus of Sparta, not an approach to political reflection that Locke himself had adopted (RLP, i, p. 291). Much the most complex mixture can be found in John Trenchard and Thomas Gordon’s Cato’s Letters (1720–3), which seamlessly drew upon Lockean natural rights as well as upon the canon of Roman republican virtue (Hamowy 1990). This kind of eclecticism was to be found throughout the eighteenth century, for example in James Burgh’s Political Disquisitions of 1774–5, one of the most popular political textbooks of its era (Zebrowski 1991). 49

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The ancien r´egime and its critics Among political theorists of the late twentieth century, particularly in North America, there has been a tendency to assume a radical incompatibility between the ‘liberal individualist’ tradition, preoccupied with private rights and personified by Locke, and the ‘civic humanist’ tradition, preoccupied with public virtue and personified by James Harrington, the republican theorist of the 1650s. The fate of modern rights theory is accordingly made to depend on establishing whether Locke was central or marginal in the eighteenth century and beyond. He was not, however, understood in so narrowly partisan a way in the eighteenth century; his influence was more protean and indeterminate. It will be recalled that a central paradox of the post-Revolution English state was that the vaunted ‘system of liberty’ stood alongside extensive powers claimed for the authority of the crown-in-parliament and for the crown’s ministers who managed parliament. For many, the claim of ‘liberty’ thereby came to seem hollow. Three distinct attempts to limit, in theory and in practice, the sovereign authority of the post-Revolution state can be identified: first, claims made on behalf of the autonomy of the church; secondly, claims made in defence of the autonomy of Ireland and Scotland; and thirdly, claims on behalf of the collective body of the people outside parliament. All were ideologically potent, but none of them was politically successful during this era. The same may be said of a fourth claim, on behalf of women against men. 4

The claims of the church

The Lutheran view that the government of the church belonged to the civil magistrate had long been challenged within the Church of England by a quasi-Catholic claim that the church possessed an authority independent of the secular state. The church, especially its bishops, claimed to derive authority by succession from the Apostles, to whom Christ had entrusted His church. In High Church Anglicanism this entailed the indefeasibility of episcopal authority, and the untrammelled right of the church to punish heretics and schismatics in order to preserve the truths and unity of the Christian church. All this amounted to a forceful set of limitations on what earthly rulers were permitted to do in governing Christ’s church. The Revolution was a terrible blow to orthodox churchmen.8 Hitherto the church had had the means to achieve religious uniformity and to punish 8 On post-Revolution theories of church and state see Bennett 1975; Clark 1985; Cragg 1964; Every 1956; Goldie 1982; Stephen 1876; Taylor 1992; Young 1998.

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The English system of liberty ‘schismatics’ through coercive laws, and it had in particular sought to crush puritan Nonconformity. The Toleration Act of 1689 liberated the Protestant Nonconformists, or ‘Dissenters’, who rapidly achieved a prominence in English society and politics. An unprecedented religious pluralism, for Protestants if not for Catholics, was now enshrined in statute. The Revolution entailed a whole series of further blows to the church. The spread of Arian, Socinian, deist, and ‘atheist’ heresies by means of a freer press, the legal establishment of a rival, Presbyterian church in Scotland, and the peremptory deposition by the secular state of the English ‘Nonjuring’ bishops – those who refused to swear allegiance to the Revolution – all served to provoke a militant High Church movement that aimed to recapture the lost authority of the church. Francis Atterbury’s Letter to a Convocation Man (1697), a litany of the church’s tribulations, demanded the summoning, and free conduct, of Convocation, the church’s parliament. When Convocation was allowed to convene in 1701, it proceeded to vex the secular rulers by pronouncing episcopacy to be by ‘divine right’ and by condemning several authors for heresy. High Churchmen and Nonjurors asserted the Catholicity of the church, said to be universal and not merely national. The ‘Keys of the Kingdom’ given by Christ (Matthew 16:18), which were the keys of doctrine and discipline, were entrusted to spiritual and not to secular governors. Episcopacy was ordained by Christ, so that modes of church government were not a matter of temporal utility. Deploying Aristotelian and Johannine terminology, High Church theologians described the church as a corporation with a distinct telos, a communion or koinonia, which had an inherent right of public assembly. The encroachments of the civil magistrate were seen to pose as great a threat to the church as the pope of Rome. Charles Leslie’s Case of the Regale (1700) attacked secular power as fulsomely as he attacked papal power. ‘The Western church’, he pronounced, ‘was (like her master) crucified betwixt the usurpations of the Pontificate on the one side, and the Regale on the other’.9 Henry Dodwell likewise protested that the Revolution state would ‘destroy the very being of the church as a society’, and Matthias Earbery feared that the Christian creed might become ‘as subject to a repeal as the Game Act’ (Dodwell 1692, p. 3; Earbery 1716, p. 49). Similar fears were articulated in such works as George Hickes’s Constitution of the Catholick Church (1716) and William Law’s Three Letters to the Bishop 9 Leslie 1700, p. 161. Leslie was alluding to the fact that Jesus Christ was crucified between two thieves. ‘Regale’ meant kingly rights.

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The ancien r´egime and its critics of Bangor (1717–19). All these authors detected the influence of Hobbesian Erastianism in the Revolution doctrine of the church, foreshadowing a ruthless subordination of religion to secular utility and parliamentary whim. The contrasting Low Church view of the church’s powers was put in William Wake’s Authority of Christian Princes over their Ecclesiastical Synods Asserted (1697), which countered Atterbury’s constitutional claims for Convocation. Wake’s image of a godly prince summoning church councils over which he would preside and determine their agendas derived from the intellectual tradition of Marsilius of Padua, the late medieval conciliarists, and the ‘caesaropapal’ arguments advanced by the apologists for the Henrician Reformation. In the circumstances of the post-Revolution English state, the ‘godly prince’, Wake argued, was now parliament. The final phase of the contest over Convocation is known as the Bangorian Controversy (1717–20), named after the Whig bishop of Bangor, Hoadly, whose Nature of the Kingdom, or Church, of Christ (1717) provoked 400 tracts in response. Hoadly went much further than Wake in his attack on the independent powers of the church, arguing that Christ ‘left behind him no visible human authority’, so that any claim to it was a dangerous denial of civil authority. Hoadly all but dissolved the church as a corporate body: it was no other than the secular commonwealth at prayer, and the clergy were, in effect, civil servants. Between the state and private conscience Hoadly found no role for an autonomous church. He was duly condemned by Convocation for tenets tending ‘to destroy the being of those powers, without which the church, as a society, cannot subsist’. In order to rescue Hoadly, the Whig government abruptly closed down Convocation. It did not meet again for more than a century (RLP, v, pp. 143ff). A similarly devastating dissolution of the church’s claims occurred in Matthew Tindal’s Rights of the Christian Church (1706). Both Hoadly and Tindal wavered between a Lockean doctrine of the separation of church from state, and an Erastian and Hobbesian insistence on the secular magistrate’s supreme authority in ecclesiastical matters. Arguably they, along with the deist John Toland, envisaged not so much the reduction of the church to a private voluntary association – within civil society, having no part of the state – but rather inclined towards turning the church into a civil religion that would be national and public, yet open and tolerant. A civil religion would inculcate the social virtues and would be cleansed of clericalism and credal dogmatism. In his Alliance between Church and State (1736), William Warburton made a signal attempt at a theoretical reconciliation between those (Catholics) 52

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The English system of liberty who made ‘the state a creature of the church’ and those (Erastians) who made ‘the church a creature of the state’. In an ingenious reworking of contract theory, he proposed that the original autonomy of the church, ‘independent of civil government’, was superseded by a contract or ‘free convention’ which the church entered into with the state. This contract was coterminous with the civil contract that established the state, and hence it could be found ‘in the same archive with the famous original compact between magistrate and people’. It was a contract of mutual benefit by which the church ‘shall apply its utmost influence in the service of the state; and the state shall support and protect the church’. Warburton stipulated that the contract dictated that there should be freedom of worship for all Protestants, but that the Test Acts, the laws which preserved to members of the Anglican state-church a monopoly of public office, should remain in place. With stunning bathos, he thus discovered eternal underpinnings for contemporary English arrangements, pronouncing that ‘an established religion and a Test law [rest] upon the fundamental principles of the law of nature’. Warburton was singled out for comment by Rousseau in his chapter on civil religion in The Social Contract (1762), and Warburton’s own revised edition of his book responded with a critique of Rousseau’s deism and the Frenchman’s taking of liberty to ‘ridiculous excess’ (RLP, v, pp. 194, 206, 215, 220–1, 224, 238, 274; SC, iv.8, p. 146, also ii.7, p. 72; see Taylor 1992). Warburton’s narrowly juridical approach to the supposed ‘alliance’ between church and state seemed to leave civil rulership devoid of godliness, and the church, after the ‘alliance’ was made, at the mercy of the state. For many churchmen, a more satisfying thesis could be found in Edmund Gibson’s Codex Juris Ecclesiastici Anglicani (1713), a painstakingly judicious account of the union of the two societies, ecclesiastical and secular, but one that was more deliberately evangelical in the weight it gave to the state as a propagator of Christian truth and morality, and more insistent upon the authority of the clergy. The book made possible a rapprochement between Whig politics and Anglican churchmanship. Gibson and Warburton set patterns for later eighteenth-century variations on the theme of the semi-detached alliance of church and state, which are to be found, for example, in Sir William Blackstone and William Paley. A more determined critique of the idea of a state church is to be found among the Dissenters, exemplified by the introduction to the second part of Edmund Calamy’s Defence of Moderate Nonconformity (1704) and John Shute Barrington’s The Rights of Protestant Dissenters (1704–5). These treatises weaned Presbyterianism from its lingering aspiration to displace Anglicanism 53

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The ancien r´egime and its critics as the national church, and from the more intolerant traditions within Calvinism. They endorsed denominational pluralism, detaching religion from the state by dwelling on the Lockean conception of the church as a voluntary society. Their insistence that a church was no more than a free association within civil society ensured that ‘Locke on toleration’ increasingly came to be seen as a partisan defence of Protestant Dissent (Bradley 1990; Haakonssen 1996b; Lincoln 1938; Watts 1978). Beyond the boundary of formal ecclesiology, the drive to make priests civil, to strip them of their pretensions to public authority, became a strong cultural imperative in what may legitimately be called the early English Enlightenment. In some circles, post-Revolution sensibility was deeply anticlerical and the new term ‘priestcraft’ entered the vocabulary with some suddenness during the 1690s. Exposing the historical and anthropological roots of the sham of priestly power became an objective even of popular newspapers, such as The Independent Whig (1720–1), as well as of deistic treatises and Whig sermons such as those collected in Richard Baron’s Pillars of Priestcraft and Orthodoxy Shaken (1768). There was no more outrageous or persistent enemy of clerical authority than John Toland, whose Christianity not Mysterious (1696) left little room for a sacerdotal caste.10 5

The claims of Ireland and Scotland

There was no British state before the Anglo-Scottish Union of 1707 and no United Kingdom before the British–Irish Union of 1800. In the seventeenth century there was a union only of crowns, for there were three kingdoms, three parliaments, and three privy councils, under a single monarch. At the same time of course the theoretical equality of the Three Kingdoms was belied by the predominance of English power and the claims of the English parliament. For England, the overriding consideration after 1688 was the need to prevent the regal union from fracturing. Whereas the Revolution in England was bloodless, Ireland had to be reconquered at the Battle of the Boyne in 1690 in order to defeat James II, and Scotland likewise posed a dynastic threat through repeated Jacobite insurrections that were marked in blood from the Battle of Killiecrankie in 1689 to that of Culloden in 1746. Both kingdoms also offered opportunities for France to expand its theatres of warfare, during what were, in effect, the Wars of the British Succession, 10 On Toland and anticlericalism see Berman 1975; Champion 1992, 2003; Daniel 1984; Force 1985; Goldie 1993a; Harrison 1990; Jacob 1981; O’Higgins 1970; Redwood 1976; Sullivan 1982.

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The English system of liberty which began in 1689. Nor were the Catholics and Jacobites of Ireland and Scotland the only recalcitrants, for Protestant patriots in both kingdoms also resented English overlordship. In consequence, and despite the military crushing of insurrection, there were vigorous movements which sought to limit or dissolve the power of the metropole, of the English state. When such movements carried their nations to the verge of complete independence from England – in Scotland in the early 1700s and in Ireland in the 1790s – they were trumped by imperial incorporation into the English state, achieved in the Unions of 1707 and 1800. What had once been only a union of crowns became thereby a union of parliaments and states. In protest against London’s control of its legislative agenda, the Irish parliament of 1692 asserted its right to initiate bills for taxation. Anger was soon heightened by the English parliament’s legislative assault on the Irish woollen industry, seen as a commercial threat to England’s vital textile trade. This provoked William Molyneux’s influential Case of Ireland (1698), which reached a tenth edition by 1782.11 Molyneux’s book was a protest against metropolitan policies, fashioned into a federal interpretation of the regal union. Ireland, he insisted, was equal in status to England, a ‘separate and distinct kingdom’ with its own supreme parliament, not subject to English jurisdiction. Although Molyneux’s book has sometimes been interpreted as a textbook of ‘colonial nationalism’, he was no modern ‘nationalist’, having no interest in cultural identity or in breaking the regal connection. As a member of the Protestant settler ‘Ascendancy’, he ignored the Catholic majority of Ireland, who did not begin to find their own patriot voice until the 1750s, in Charles O’Connor’s writings. Molyneux took for granted a common inheritance of ancestral English liberties ‘enjoyed under the crown of England for above five hundred years’. In fact, he was not necessarily averse to an incorporating union as a solution to Ireland’s unequal treatment, a union by which Irish members would be elected to an imperial parliament in London, provided that such a union would indeed bring full economic equality. This was a case more fully explored in Henry Maxwell’s Essay towards an Union of Ireland with England (1703). Much later, when the Irish parliament did achieve considerably greater autonomy, Molyneux’s remark in favour of full union was suppressed in the edition of his book published in 1782. Even so, regal union was still not questioned, and Molyneux’s federal solution dominated Irish ‘patriot’ discourse throughout the century, until 11 On Molyneux and Irish political thought see Bartlett 1995; Boyce et al. 1993, 2001; Eccleshall 1993; Gargett and Sheridan 1999; J. Hill 1995; Kearney 1959; Kelly 1988, 1989a, 1989b; Ohlmeyer 2000; Simms 1982, 1986. For the broader pattern of English imperial ideology see Armitage 2000b.

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The ancien r´egime and its critics Wolfe Tone, under the influence of French revolutionary principles, called for a fully independent and republican Ireland in 1798. Molyneux argued that the Irish people had made a free contract with the English crown – not the English state – and that no laws could be introduced without their consent. His book made striking use of Locke’s ‘incomparable’ Two Treatises of Government. Quoting Locke, he asserted that upon ‘equality in nature is founded that right which all men claim, of being free from all subjection to positive laws, till by their own consent they give up their freedom, by entering into civil societies’. In particular, the ‘patriots of liberty and property’ will abhor ‘taxing us without our consent’ (RLP, i, pp. 222, 225, 272, 280). This invocation of Locke’s remarks in paragraphs 140 and 142 of the Second Treatise provided a prototype of the use to which the Two Treatises would be put by colonial rebels in North America in the 1760s. Molyneux’s book was cited in Boston newspapers, and there were copies in the libraries of Thomas Jefferson and James Madison. In the late 1690s, John Cary and William Atwood, defenders of the English Whig ministry, responded to Molyneux with an aggressive assertion of England’s imperial rights, often borrowing Tory arguments in so doing. Cary insisted that Ireland was ‘a colony of England’ by right of conquest, and that it had a parliament only by ‘concession’, not of right. The conquest of the Irish in the thirteenth century had aimed, in Roman manner, ‘to civilise them into good manners and useful arts’, out of ‘barbarism and ignorance’. This rigorist approach to unitary statehood was buttressed by a remark that the contemporary German city-states were ‘not exempt from . . . dependence’ on the emperor, whatever measure of autonomy they were granted (Cary 1698, ep. ded.). Atwood was similarly unabashed in saying that Dublin was part of ‘this empire’ of England, in the same manner as any English provincial town. He offered a brutal reminder to Irish Protestants of the falsity of their position: ‘if their consciences are squeamish let them renounce their right to the lands of the [Catholic] natives’ (Atwood 1698, p. 44). The English parliament formally condemned Molyneux’s Case of Ireland as contrary to ‘the subordination and dependence that Ireland hath . . . to the imperial crown of this kingdom’. It continued to legislate for Ireland and in 1720 passed a Declaratory Act describing Ireland as ‘a dependent and subordinate kingdom’. Molyneux’s tradition continued, notably in Jonathan Swift’s Drapier’s Letters (1724), which were a powerful assault on English overlordship. In his fifth letter, dedicated to Viscount Molesworth, Swift declared that, after ‘long conversing with the writings of your lordship, 56

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The English system of liberty Mr Locke, Mr Molyneux, Col. Sidney, and other dangerous authors’, he had derived the maxim ‘that freedom consists in a people being governed by laws made with their own consent; and slavery in the contrary’ (Swift 1939–68, x, pp. 85–7). In the first decade of the eighteenth century, Scottish self-assertion took an even more dramatic turn. It was sponsored by a volatile combination of militant Presbyterians, republicans, and Jacobites. At the Revolution, in 1689, the Scottish parliament, more forthright than the English, resolved that James II had ‘forfeited’ his crown, for having ‘invaded the fundamental constitution . . . and altered it from a legal limited monarchy, to an arbitrary and despotic power’. Rapidly thereafter, the parliament, previously carefully managed by the Stuart crown, seized the constitutional initiative, snubbed English ministers, and overthrew episcopacy, putting Presbyterianism in its place, thus formally establishing a different religion in the northern kingdom. During the 1690s, resentment against England was fuelled by famine, by the economic disruption of the French wars, and by the Darien disaster, in which a Scottish attempt to found a colony in Panama came to human and financial grief. The upshot was the remarkable parliament of 1703, which asserted a right to control Scotland’s foreign policy and to settle the inheritance of the crown differently from England. The Scots, wrote Gilbert Burnet, exhibited ‘a national humour of rendering themselves a free and independent kingdom’ (qu. Ferguson 1964, p. 96). Ideologically, the lead was taken by Scottish patriots who, if not literally republican, aimed to reduce the crown to a mere figurehead. They did not propose total separation of the kingdoms, but instead a loose federal relationship. Their ideas were expressed in purest form by Andrew Fletcher of Saltoun, hailed as the Cicero of the Scottish Country Party.12 Fletcher was a powerful orator, a religious sceptic, and a professional rebel. Although today regarded as a key figure in the canon of Scottish nationalism, he was largely ‘antique’ in his commitments, preoccupied with the austere civic virtue of the Greek and Roman city-states. The Spartans, he noted, had maintained a free state for 800 years, and the Swiss cantons were the happiest and freest commonwealths in the world. Fletcher pronounced Scotland to be ‘more like a conquered province than a free independent people’. It must liberate itself from ‘perpetual dependence upon another nation’. He inveighed against the ‘horrid corruptions’ of the 12 On Fletcher and Scottish political thought see Bowie 2003; Ferguson 1974; Goldie 1996; Hont 1983, 1990; Kidd 1993; Lenman 1992; Levack 1987; McPhail 1993; Phillipson 1993a; Robertson 1987b, 1993, 1994, 1995; Scott 1992.

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The ancien r´egime and its critics English court, and its bleeding dry of the Scottish taxpayer. His own scheme of limitations on the crown was drastic in its wholesale transfer of powers to the Scottish parliament. There were to be annual parliaments, electing their own president; for every new peerage created there must be a new commoner member of parliament; all officers of state and judges were to be chosen by parliament; the royal veto on legislation was to be abolished; parliament would have a veto over foreign policy; there was to be no standing army without parliamentary consent; and a citizen militia was to be created. Fletcher proposed a final clause, the trump card: if the crown broke these rules, it was to be declared forfeit. Scotland’s parliament would thereby become ‘the most uncorrupted senate in Europe’ (Fletcher 1997, pp. 133, 141, 162–3, 164–5). For Fletcher, this reconstruction of civic institutions would be the prelude to a more general social and economic regeneration. He differed from other defenders of ancient virtue by refusing to resort to Arcadian sentimentalism, and he did not hold that commerce or market economics were harbingers of modern decadence and oppression. He roundly condemned Scotland’s feudal institutions, and rackrenting by absentee noblemen. Despite advocating the promotion of commerce, he also rejected emulating England’s commercial system. His Account of a Conversation (1704) is a profound analysis of the position of subordinate provinces in such a system. Poor countries suffer more than they gain from rich metropolises: they have the advantage of low wage costs, but the disadvantages of underdeveloped expertise, and the immobility of a rigid pre-modern social structure. A union, he said, would lead to England draining Scotland of its resources (Hont 1990). In his utopian moments, Fletcher dreamed of a pan-European federation of small, free, and non-expansionary republics. Within the British Isles, London, Bristol, Exeter, York, Edinburgh, Stirling, Dublin, Cork, and Derry might become regional capitals. This was grounded on the Greek system of city-states with their agrarian hinterlands, autonomous but associated in a league. It was a riposte to two rival models of international relations: the Counter-Reformation aspirations of Spain and France for universal Catholic empire, and the theory of a balance between major superpowers who engrossed small states under their supposedly protective wings. Later, Rousseau would contemplate writing Fletcher’s biography. His central claim would be that the Anglo-Scottish Union of 1707 was a classic instance of the corruption of modern civilisation in the servile sacrifice to a monstrous empire of a once vigorous small nation. 58

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The English system of liberty Other writers who shared Fletcher’s opposition to an incorporating union explored the historical and constitutionalist case for Scotland’s independence, in echoes of the Molyneux debate over the parallel status of Ireland. Scotland’s Molyneux was George Ridpath, whose An Historical Account of the Antient Rights and Powers of the Parliament of Scotland (1703) endeavoured to manufacture a Scottish ‘ancient constitution’ grounded in a parliamentary tradition. Jacobites like Sir Robert Sibbald, Archibald Pitcairne, and Thomas Ruddiman endorsed ‘Country’ principles and likewise dwelt, in the words of Sibbald’s title, on The Liberty and Independency of the Kingdom and Church of Scotland (1702). From England, William Atwood riposted with a treatise called The Superiority and Direct Dominion of the Imperial Crown of England over the Crown and Kingdom of Scotland (1704), which argued that Scotland was merely a province of England. However, the English pro-Union case relied especially on economic arguments. Daniel Defoe, sent to Edinburgh on behalf of the English government, extolled the economic virtues of free trade, warned of the imminent collapse of the Scottish economy if union was rejected, and promised commercial and agrarian regeneration if it succeeded. The choice lay between ‘peace and plenty’ and ‘slavery and poverty’. He insisted that the rhetoric of Scottish independence was an illusory fantasy: Scotland was a bankrupt backwater in need of a firm dose of English commercialisation. True patriotism, echoed Sir John Clerk of Penicuik, lay in the pursuit of economic improvement. William Seton of Pitmeddon agreed: ‘this nation, being poor, and without force to protect its commerce, cannot reap great advantage from it, till it partake of the trade and protection of some powerful neighbour nation’ (qu. Mitchison 1983, p. 135). The case for union was not, however, only juridical and economic, and William Seton, the earl of Cromartie, and Viscount Tarbat also offered a political analysis. They held that imperfect federal unions did not flourish. In the partial unions of Denmark with Norway, Aragon with Castile, and Portugal with Spain, the weaker party always suffered. Only full integration with the metropolis dissolved the disadvantages suffered by unequal partners. Cromartie pointed to the exigencies of the European balance of power, to French aspirations to universal monarchy, and to the weakness of an independent Scotland amidst Great Power politics. His cry was ‘May we be Britons, and down go the old ignominious names of Scotland, of England’ (qu. Scott 1979, p. 27). The threat of a Scottish Jacobite republic, albeit a political oxymoron, galvanised English political resources to engineer the Union of 1707. The 59

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The ancien r´egime and its critics Scottish parliament was persuaded to abolish itself in return for free trade and guarantees of the autonomy of the Scottish legal system and the Presbyterian church establishment. For diehards like Lord Belhaven the Union was ‘an entire surrender’: ‘we are slaves for ever’ (qu. Daiches 1977, p. 148). In European intellectual history thereafter, Scotland remained a test case for those who sought to understand the relationship between polities and economies. Over time, the comparison became less one between England and Scotland as such, and more one between British Scotland – the Protestant, commercial Lowlands – and the ‘feudal’, Jacobite, and largely Catholic Highlands. The Highlands continued to resist the process of incorporation until the British government deliberately dismembered Highland clan society after the crushing of the Jacobites in 1746. In Karl Marx’s political sociology, the analysis of the transition from feudalism to capitalism, dependent as it was on the work of the Scottish economists of the late eighteenth century, contained a distinct echo of the relations between economy and polity in a nation where the boundary between Highland and Lowland, Jacobite and Hanoverian, agrarian and commercial, ‘backward’ and ‘modern’, seemed so palpable. Post-Union Edinburgh’s anxious contemplation of the Highlands thus sponsored some of modernity’s most fundamental conceptions. 6

The claims of the people

Within post-revolutionary England, a further challenge to the supremacy of the Westminster parliament lay in the populist claim that parliament was not the plenary and sovereign embodiment of the political community. Rather, the voice of the people was autonomous and ultimately supreme. This view remained subordinate: it would fare better in revolutionary America and France. The challenge it faced was to formulate a reply to the dominant English anti-populist position, which rested on two axioms. The first was the principle of ‘virtual representation’, by which the whole community was deemed to be fully and really present in parliament, so that ‘the people’ did not have a corporate existence independent of its representatives in parliament. The second was the principle that members of parliament were not delegates but representatives, who exercised personal judgement in parliament, without being bound by instructions or mandates from their constituents. Every edition of Edward Chamberlayne’s Angliae Notitia from 1699 to 1755 spoke of a member of parliament as having a ‘power absolute to consent or dissent without ever acquainting those that sent him’ 60

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The English system of liberty (Chamberlayne 1700, p. 159). The two axioms were most famously articulated in Edmund Burke’s Speech to the Electors of Bristol (1774). In defence of the second he was especially vehement. ‘Authoritative instructions, mandates issued, which the member is bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest conviction of his judgement and conscience, these are things utterly unknown to the laws of the land, and which arise from a fundamental mistake of the whole order and tenor of our constitution’ (Burke 1987, p. 110). Memories of the Civil War lent urgency to these positions, for when eighteenth-century politicians condemned ‘tumultuous petitioning’ they remembered how seventeenthcentury mobs had intimidated parliament. Although the dominant axioms remained largely impervious to serious populist counter-attack until the colonial revolt in America and the English franchise agitation during the 1760s, the issues at stake did become explicit early in the eighteenth century, in the affair of the Kentish petition. In 1701 several Whig gentlemen of the county of Kent petitioned parliament, listing a series of policy demands, and urging the House of Commons to ‘have regard to the voice of the people’. The Tory Commons jailed them, accusing them of ‘tending to destroy the constitution of parliaments’. Daniel Defoe responded with his stunningly forthright Legion’s Memorial, a manifesto by the ‘people of England’, ‘your masters’. If parliaments ‘betray their trust, and abuse the people . . . it is the undoubted right of the people of England to call them to an account for the same, and by convention, assembly or force, may proceed against them as traitors and betrayers’ (Defoe 1965, pp. 83–4). Defoe quickly reached a pinnacle of fame when he elaborated this theme in his poem The True-Born Englishman (1701) and in an essay called The Original Power of the Collective Body of the People of England (1702) (RLP, i, pp. 325–54). The Kentish petitioners were also defended in Jura populi Anglicani (1701), probably written by Lord Somers, the Whig leader and friend of Locke. This tract described MPs as ‘the delegates of the people’, and construed the Two Treatises as authenticating a natural right of petitioning (Somers 1701, pp. 30, 53).13 The Whig defence of the Kentish petitioners provoked several sustained Tory ripostes. Charles Leslie published a tirade that initiated his career as the most influential Tory journalist of Queen Anne’s reign. His New Association (1703) assailed, among others, Defoe, Swift, and ‘the great Locke in his 13 The whole quarrel was allegorised by Jonathan Swift in his Contests and Dissensions between the Nobles and the Commons in Athens and Rome (1701; Swift 1967). There was a unique conjunction here of Locke, Defoe, and Swift.

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The ancien r´egime and its critics Two Discourses of Government’, as ‘fanatic’ revivers of the ‘mob principles’ of the Civil War era. Their claims enabled ‘every party and faction to call themselves the people’ and to declare those whom they hate to be ‘the public enemy of the people’. They dangerously denied the principle that the House of Commons was ‘virtually the people, and the whole power of the people [is] lodged in them’ (RLP, ii, pp. 62ff). While Leslie was a half-disguised Jacobite, other Tories turned to defend the unimpeachable authority of parliament with more conviction. Notable were Humphrey Mackworth in his Vindication of the Rights of the Commons (1701) and Offspring Blackall in The Subject’s Duty (1705). Their endorsement of parliamentary sovereignty, and transference from personal monarchy to crown-in-parliament of the old Tory doctrine of the subject’s duty of ‘passive obedience and non-resistance’, marked a decisive repudiation of the royal absolutism of pre-Revolution Toryism. It created a parliamentary Toryism which, on the one hand, was freed from the stigma of dynastic loyalty to the deposed House of Stuart, and, on the other, was armed against the coming century of democratic populism. 7

The claims of women

The final element in this survey of the aspects of civil society over which supremacy was asserted, or reasserted, in the wake of the Revolution is the relationship between the sexes. Any claim that revolutionary ideology entailed a reaffirmation of patriarchy must necessarily be speculative, since no tangible crisis occurred in gender relations to warrant extended theorising. Nonetheless, it is evident that an arresting epigram on behalf of the female sex penned by Mary Astell in 1706 was provoked by irritation at Revolution Whig doctrine. ‘If all men are born free, how is it that all women are born slaves?’ (Astell 1996, p. 18; RLP, ii, p. 116). By exploring the homology between the public and private spheres, Astell sought to expose the contradictions in what was rapidly becoming a comfortable Whig intellectual buttress of the Revolution.14 Between 1694 and 1709 she published several tracts which not only explored the predicament of women, but also assaulted Whiggery, Dissent, 14 On Astell see Astell 1986, 1996, 1997; Gallagher 1988; Kinnaird 1979; McCrystal 1993; Perry 1986, 1990; Smith 2001; Springborg 1995. More generally, Smith 1998, Weil 1999. For the claim that the Revolution was construed negatively by female authors, see P. McDowell 1998, chs. 3–5, and Perry 1990. McDowell has in mind such writers as Jane Barker, Aphra Behn, Elinor James, and Mary Manley, all Jacobites or Tories. On Barker see King 2000.

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The English system of liberty philosophical materialism, and deism. Her reputation was made by her first book, A Serious Proposal to the Ladies (1694), which was a prospectus for a female academy (unwisely termed a ‘monastery’), that would be devoted to learning, piety, and the cultivation of the ‘female virtuoso’. In a vein similar to Mary Wollstonecraft a century later, she lambasted women’s shallowness, their vanity and slavery to fashion, their reading of ‘idle novels and romances’, and their failure to pursue virtue and govern their passions (Astell 1997, pp. 13, 18). Her next tract, Reflections upon Marriage (1700), achieved a third edition in 1706, to which she added the preface in which her epigram occurs. She neither challenged the institution of marriage nor the due subordination of women within it. She acknowledged that when a woman marries she ‘elects a monarch for life . . . giv[ing] him an authority she cannot recall however he misapply it’. However, the tract attacked male brutishness and contempt for women, and beseeched men to ‘treat women with a little more humanity’. It repeated the criticism of women’s trivial pursuits, and called on women to be more circumspect and less deluded in their expectations of marriage and their choice of husbands (Astell 1996, pp. 1ff; RLP, ii, pp. 109ff). Astell was discovered by feminist scholars in the 1980s and granted the appellation ‘first English feminist’, despite her dogmatically Tory and High Church views. She upheld the Tory doctrine of passive obedience and believed that the godly response to tyranny, in politics and in marriage, was stoical suffering. She was ferociously hostile to religious Nonconformists, whom she thought of as rebels and responsible for the murder of King Charles the Martyr. She deplored the spread among the ‘rabble’ of pamphlets which found fault with ‘their superiors’ and called on the magistrate to discipline the ‘vicious and immoral lives’ of the people (Astell 1704, pp. xxxviii, xlii). She was no populist radical. Her ‘feminism’ arises from her preferred critical tool of irony. She constantly made telling points against her Whig adversaries through sarcasm and inversions of their positions. Her epigram of 1706 was hypothetical: if the doctrine of natural equality were true, then women as well as men must naturally be free. But Astell held no such premise. Her language was not of rights. Instead, she adopted the standard Tory doctrines of the common fatherhood of the race in Adam and of the origins of society known from the book of Genesis, as a refutation of the ‘meer figment’ of ‘that equality wherein the race of men were placed in the free state of nature’ (Astell 1704, p. xxxv). We are born into subjection, and although men may select their kings and women their husbands, their assent does not authorise rulership, 63

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The ancien r´egime and its critics nor does it license rebellion when dissatisfied. Astell rejected the notion of a fundamental right of self-preservation, instead advocating Christian stoicism. The Christian, by embracing the cross of Jesus, can triumph over the rage and power of tyrants, and ‘love is all the retaliation our religion allows’. She invited men and women to suffer. What she offered women was a guide to better education and conduct, and the possibility of choosing to remain unmarried. She invited women to transcend the sensual world and cultivate the virtues. What Astell did most successfully was constantly to apply Whig doctrine to the private sphere, thereby hoping to expose its absurdity in the public sphere, anticipating that no-one would concede Whig principles in the relations between men and women. ‘Why is slavery so much condemned and strove against in one case, and so highly applauded and held so necessary and so sacred in another?’ ‘If absolute sovereignty be not necessary in a state, how comes it to be so in a family?’ Contrasting the political state and the state of marriage, Astell remarked that ‘whatever may be said against passive obedience in [the one] case, I suppose there’s no man but likes it very well in this; how much soever arbitrary power be disliked on a throne, not Milton himself would cry up liberty to poor female slaves, or plead for the lawfulness of resisting a private tyranny’ (Astell 1996, pp. 17–19, 46–7; RLP, ii, pp. 115–16). 8

The Country platform

As has already been remarked, in post-Revolution circumstances the doctrine of parliamentary sovereignty was quickly transposed into a doctrine of the supremacy of the executive. This was because in the English parliamentary system the king’s ministers sat in, and had considerable influence over, the two Houses of Parliament. There was no separation of the executive and legislative arms of government. Consequently, the pre-Revolution fear of overt tyranny by a monarch ruling without parliament gave way to a new fear of covert tyranny by an oligarchy which controlled parliament. Alarms that parliament’s independence would be undermined and corrupted replaced fears that parliament would be abolished. According to Viscount Bolingbroke, parliament was now ‘induced by corruption’ rather than ‘awed by prerogative’. The chief instrument for such corruption was the use of ‘placemen’: members of parliament who held salaried offices of state, and whose votes could be influenced by the offer or withdrawal of 64

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The English system of liberty such offices. Through the weight of ‘placemen’, and mechanisms of party discipline, the crown’s ministers secured a biddable parliament. To purists, this was the reverse of the proper ordering of the polity, in which the executive should be the servant and not the master of the legislature. Parliament, as the embodiment of the Country, should stand supreme over the Court. Hence arose the powerful critique of executive power which became known as the ‘Country platform’. It emerged in the 1690s and flourished in diverse forms throughout the eighteenth century. As a result, the division between Whig and Tory was sometimes overlain, though never obliterated, by the conflict between Court and Country, in a complex political mosaic that might see Country Whigs and Country Tories united against their Court enemies. Contemporaries and historians have given the ‘Country platform’ many alternative names: Old Whig, True Whig, commonwealth, republican, civic humanist, and neo-Harringtonian. As these labels imply, the ideological core was broadly Whig, yet when Whigs were installed in power and worked the levers of executive influence, ‘Old Whig’ principles could be adopted by excluded Tories and used against those ministerial Whigs who, they claimed, had betrayed the cause.15 Within a decade of the Revolution, Court Whigs were seen as betrayers. Charles Davenant’s True Picture of a Modern Whig (1701) indicted the ‘Junto’, the Whigs in office, for having ‘departed from the principles they professed twenty years ago’. They now protected corrupt ministers, proliferated docile sinecurists, and advocated standing armies. The charges would mount. When invested with unprecedented power after the Hanoverian succession of 1714, the Whigs replaced triennial general elections with septennial elections (1716), undermined the autonomy of that great city-state, the City of London, in the City Election Act (1725), and attempted a Peerage Bill (1719) which would have rendered their control of the House of Lords invulnerable. What most dramatically altered the terrain of post-Revolution political thought was the impact of the ‘financial revolution’, which vastly increased the executive’s power of the purse.16 The post-Revolution regime rebuilt the fiscal foundations of the state, fighting a phenomenally expensive war 15 On the ‘commonwealth’ tradition see Bailyn 1967; Goldie 1980a; Gunn 1983; Hayton, Introduction to Cocks 1996; Houston 1991; Pocock 1975, 1985; Robbins 1959; Wootton 1994c; Worden 1978, 2001. 16 On the financial revolution and its fiscal and military consequences see Brewer 1989; Carruthers 1996; Dickson 1967; Hellmuth 1990; D. W. Jones 1988; Stone 1994.

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The ancien r´egime and its critics against France, funded not only by the burdensome land tax and the intrusive excise tax, but also by deficit finance, through the creation of the National Debt in 1694. The new fiscal instruments, combined with the fast-growing role of joint-stock enterprise, created a species of wealth, and a rentier class, not rooted in the land. The presumed grounding of autonomous citizenship, of political personality, of gentility, in real estate seemed suddenly vulnerable. The new world of financial wealth constantly provoked commentators to denounce ignoble greed and avarice. The fickleness, mobility, and intangibility of cash, commerce, and credit (enhanced by a phantasmagoria of lotteries, stock bubbles, ‘projectors’, and embezzling courtiers) seemed a sickness ultimately fatal to the body politic. A prolonged quarrel between ‘land’ and ‘money’ ensued, exemplified in the fictional coffee-house arguments between the landed squire Sir Roger de Coverly and the urban plutocrat Sir Andrew Freeport in the pages of Joseph Addison’s Spectator. It was also there that ‘Publick Credit’ was personified as a virgin lady whose virtue it was the prime duty of the state to defend (3 Mar. 1711). It is tempting to presume a simple dichotomy in these arguments, the one side antique and fixated in nostalgic seigneurial distrust for the new commercial age, pitted against a modern Whig embrace of commerce and the market, the latter epitomised in the shamelessly bourgeois Defoe’s investiture of trade as the carrier of modernity. The anti-commercial position could certainly produce near caricature: a fiercely Spartan hatred of the ‘luxury’ and ‘effeminacy’ of commercial society persisted as late as John Brown’s popular jeremiads published in the 1750s (Canovan 1978). Yet the picture was more complex. Few landed gentlemen avoided commerce or investment in government debt. For all its invocation of ancient virtue, the anti-government paper, Cato’s Letters, embraced commerce.17 Applause and abuse of commerce and public debt produced no exact political alignments, as compared with more sharply defined issues like placemen and standing armies, but they provided rich rhetorical resources for the conduct of political argument and, by and large, it would be the ‘Country platform’ which would adopt a stance of hostility towards the institutions of the new ‘fiscal-military’ state. The ‘Country’ vision came into focus in the mid-1690s, particularly in the Grecian Coffee House in London, among a circle of ‘Commonwealthmen’ that included Robert Molesworth, Anthony Ashley Cooper (later third earl of Shaftesbury), Trenchard, Moyle, and Toland. They were galvanised, 17 On the ideological impact of the financial revolution see Bloom and Bloom 1971; Brantlinger 1996; Goldsmith 1977; Nicholson 1994; Pocock 1975. For Bernard Mandeville’s role see ch. 13 below.

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The English system of liberty after the Peace of Ryswick in 1697, by anger that the Court proposed to maintain a standing army, allegedly to withstand the continuing threats proposed by France and the Jacobites. The Country party expressed passionate hostility against ‘mercenary armies’, ‘royal guards’, and ‘janissaries’. These sentiments gave rise to a reverence for the ideal of a citizen militia, which lent to the Country tradition its most recalcitrantly antique construal of the attributes of free citizenship, through its invocation of Spartan models of martial citizenship. They also made use of Machiavelli’s condemnation of mercenaries in his Discourses, a text which acquired pride of place in the Country tradition. The theme was signally stated in Moyle and Trenchard’s An Argument Shewing, that a Standing Army is Inconsistent with a Free Government (1697) and in Trenchard’s Short History of Standing Armies (1698), and the Spartan vision was perfected in Fletcher’s scheme for sending all male citizens to rural encampments for a period of training. Opposition to mercenary armies, alongside ‘mercenary’ parliaments, came to dominate the landscape of opposition in the first half of the eighteenth century. That professional (‘standing’) armies were nonetheless becoming a ubiquitous institution of modern states during this period marks out the militia ideal as an anachronism, but it was an extraordinarily tenacious ideal, and it had a significant afterlife in the American conception of the citizen’s right to bear arms (Malcolm 1994; Robertson 1985; Schwoerer 1974). Contemporaneous with the standing army controversy of the late 1690s was a remarkable campaign of republication of earlier texts, and of textual manipulation, which bequeathed ‘commonwealth’ handbooks to the coming century, and established what became a hackneyed canon of political high virtue. This was chiefly the work of the prolific Toland. The Whig martyr Algernon Sidney’s Discourses concerning Government, for which he had been executed in 1683, appeared in 1698; the Works of John Milton came out in 1699; those of the republican James Harrington in 1700. In a shrewd piece of editorial revision, Toland transformed the tone of Colonel Edmund Ludlow’s Civil War Memoirs, written in the 1660s, and published in 1698, softening Ludlow’s militant godly zeal into a secular moralism more suited to Enlightenment sensibilities. To take just one instance of Toland’s technique, a hero of the Civil Wars who in the original manuscript went to his execution like ‘a lamb of Christ’, in the printed edition ‘died like a Roman’ (Worden 1978, 2001). What is striking about the Country frame of mind is that it often dwelt on the ethic of citizenship rather than on institutions or policies. At its heart was an analysis of civic personality, of the ‘spirit’, manners, or ethos of liberty, 67

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The ancien r´egime and its critics of the things that led to self-enslavement and those that were proof against it. The discussion revolved around several ubiquitous dichotomies, virtue against corruption, public good against private advantage, transparency of counsel against the secret cabals of juntos and cabinets. Such discussions readily moved into a domain of moral philosophy, dominated by ideals of sociability, civility, and ‘politeness’, encapsulated in Shaftesbury’s Characteristics (1711) and Addison’s Spectator. Country writers also endorsed a Stoicized Protestant moralism that was embodied in the ‘reformation of manners’ movement, which sought to improve moral discipline in order to create sober, industrious citizens.18 Eclecticism is, again, manifest. Even the High Church Tory Astell slid easily between quoting the Gospel’s ‘contempt for riches’ and quoting Machiavelli on behalf of the poverty that would serve the ‘conservation of . . . liberties’, and, likewise, juxtaposing the Biblical ‘eye of the needle’ with Lycurgus’s banishment of riches from Sparta (Astell 1704, pp. vii, xxxii). This was an idiom, more Ciceronian than Lockean, in which the ‘character’ of the citizen figured more prominently than claims of their ‘rights’. It was an idiom that centred on the contrast between autonomy and dependence. A free citizen was one who had the economic means of selfsufficiency and who owed others none of the deference due from a wageearner, servant, child, or woman. Likewise, the free citizen was untainted by the deference to government that was cynically purchased from citizens who depended on income from investment in government stock. The citizen was the Aristotelian head of an independent household, an oikos. A free citizen was not only one for whom economic independence bred moral independence of judgement, but also one enjoying sufficient freedom from toil to be able to participate in the commonwealth. Citizenship was marked by the constant habit of governing, in the holding of public office, as justice of the peace, grand juryman, sheriff, militia lieutenant, vestryman, or parish constable. Holding office arguably mattered more than the right of franchise, the power to vote in parliamentary elections, for, until the 1760s, extension of the parliamentary franchise and the ‘fair’ distribution of seats were practically absent from reform agendas, and officeholding was more widespread than the right to elect Members of Parliament (Goldie 2001). This way of speaking about political character could serve those both at the highest and most humble levels of householder-citizenship. The aristocrat 18 On ‘politeness’ see Bloom and Bloom 1971; Klein 1989, 1994; Langford 1989; Phillipson 1993a. Editions: Shaftesbury 1999; Addison 1979; Addison and Steele 1965; Steele 1987. On the ‘reformation of manners’ see Bahlman 1957; Burtt 1992; Claydon 1996.

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The English system of liberty was the citizen writ large, his economic independence so great that he could resist the blandishments of Court bribery and exercise senatorial restraint over Courtly excess. Yet equally the citizen might be a modest freeholder or urban shopkeeper or artisan, a holder of office and participant in decisionmaking in parish and ward. At least until the era of Thomas Paine late in the century, the axiom of householder-citizenship took precedence over individualist and universalist – in a word, democratic – ideas of citizenship and suffrage. Finally, in the Country idiom, a free citizen was also said to be intellectually independent, and not befuddled by superstition and ‘priestcraft’ into craven deference to pseudo-sanctified authority. As Robert Molesworth warned, ‘jure divino’ doctrines provide ideological props to despotism, and a wise statesman is one who keeps the clergy firmly within bounds (Molesworth 1694). In Country eyes, post-Revolution England was threatened by a legal, parliamentary tyranny, which would come not by the sword, but by legislation and by corrupted parliamentary majorities. Modern tyranny was no melodrama of massacre, but the quiet suffocation of the public good by private greed and ambition. Citizens must therefore be alert to the underhand erosion of liberty. The treatment of this theme was saturated with classical allusion and conducted on terms of intimate familiarity with the history of ancient Rome. No historical moment became so allegorically powerful in the English political imagination as Rome’s transition from republic to empire, under the guise and cloak of liberty and the constitution, and no historical figures became so ubiquitous as the republic’s defenders, Cicero and Cato. The fullest encyclopedia of Country attitudes carried the title Cato’s Letters, and Joseph Addison’s play Cato (1713) was one of the century’s theatrical triumphs. Citizens were enjoined to beware of ‘Caesarian tyranny’, brought in, like Julius Caesar’s and Augustus’s, under the ‘show’ of a senate and the ‘appearance’ of the people’s choice of its tribunes and praetors. Classical learning was deeply embedded in political debate. The parliamentary speeches of the Country MP Sir Richard Cocks between 1698 and 1702 were peppered with references to Aristotle, Cicero, Seneca, Livy, Plutarch, and Sallust (Cocks 1996).19 That classical heroes should not entirely sit on the opposition benches mattered considerably to the Court: Conyers Middleton’s Life of Cicero (1741) was dedicated to Prime Minister Sir Robert Walpole. 19 For classicism in political culture see Ayres 1997; Bolgar 1979; Erskine-Hill 1983; Rawson 1989; Turner 1986; Weinbrot 1978.

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The ancien r´egime and its critics The language of Rome did not, however, exclude another resource that also retained its efficacy, the idyll of the Ancient Constitution. This was a ‘Gothic’ rather than Roman idiom, and gentlemen were no less well read in the histories of the Saxon and medieval European polities. They believed those polities to have been balanced constitutions in which monarchs, noblemen, and commoners had their respective roles and held each other in check. In 1716 Addison wrote of a Buckinghamshire alderman who, when drunk, ‘will talk [to] you from morning till night on the Gothic Balance’ (Addison 1979, p. 264). It was held that many nations had, since the Renaissance, lost their ‘Gothic balance’, and become monarchical despotisms. Nations had lost their freedoms, for example, when kings had crushed feudal nobilities, leaving themselves unrestrained by an aristocratic counterweight. This was the message of Molesworth’s Account of Denmark (1694), which told of the Danish constitutional revolution of 1660 that installed an absolute monarchy by stealth, and warned of a similar fate for England if it should cease to be vigilant. There was a vital textual link between the Roman and Gothic idioms, in Tacitus’s Germania, which had reproached the corruptions of imperial Rome and held up for admiration the robust virtues of the Teutonic tribes in the forests of Germany. Tacitus provided the ur-text for the Gothic ideal, and it was this Tacitean tradition which Montesquieu invoked in his famous remark that the ‘beautiful system’ of the English found its origins ‘in the forests’ (SL, xi.6).20

9

‘Robinocracy’ and its enemies

The regime of Prime Minister Sir Robert Walpole (1722–42) provoked an opposition of stunning ferocity, intellectual ingenuity, and literary fecundity. In the eyes of Tories, Jacobites, and dissident Whigs, loosely amalgamated into a Country party, Walpole was the incarnation of parliamentary tyranny, a chief minister who held his monarch in captivity and who corruptly suborned parliament. The years of his rule were strewn with opposition bills and motions aimed chiefly at four targets: reversal of the Septennial Act, hatred of which served to entrench the ideal of ‘annual parliaments’ down to the era of the Chartists in the 1840s; banishment of servile ‘placemen’ 20 On Saxonism and the Ancient Constitution see Cairns 1985; Colbourn 1965; Francis and Morrow 1988; Gerrard 1994, pt 2; Kliger 1972; Lutz 1988; Pocock 1960, 1987; Smith 1987; Sullivan 1982. Montesquieu’s phrase, ‘beautiful system’ (‘beau syst`eme’), is rendered more flatly as ‘fine system’ in the recent Cambridge edition (p. 166).

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The English system of liberty and ‘pensioners’; dissolution of the standing army; and curtailment of the instruments of fiscal despotism, notably the excise taxes. These campaigns benefited from a lavish literary renaissance, which opened with Swift’s Gulliver’s Travels in 1726. Walpole was here caricatured as Flimnap in the Voyage to Lilliput, the impresario of the circus tricksters who win pretty ribbons from the Lilliputian king. A nobler monarch was the king of Brobdingnag, a patriot who transcended faction and outlawed mercenary armies and moneyed men. In John Gay’s Beggar’s Opera (1728), Walpole was represented as Captain Macheath, the highwayman. Or maybe he was Peachum, the receiver of stolen goods. The play prompted the government to impose censorship on the theatres. Gay’s play was in part a reprise of St Augustine’s story, in The City of God, of the encounter between the Emperor Alexander and a pirate: the moral is that a ruler is merely a pirate who has achieved larceny on a grand scale (iv.4). This trope was repeatedly refashioned, from Henry Fielding’s Jonathan Wild (1743) to Bertolt Brecht’s Threepenny Opera (1928). In Alexander Pope’s poem The Dunciad (1728), Walpole was portrayed as the Great Dunce, the puppeteer of a band of knaves and fools. In David Mallet’s play Mustapha (1739), Walpole becomes an evil bashaw. The intricate iconography of William Hogarth’s paintings The Harlot’s Progress (1732) also yields up antiWalpolean satire. The allegorical canon of evil personae for Walpole was inexhaustible: he was equated with such royal favourites and grasping ministers down the ages as Sejanus, Tiberius, Clodius, Gaveston, Wolsey, and Buckingham. In its later phase, the Country opposition attached itself to King George II’s estranged heir, Frederick, prince of Wales, and prompted the literati to compose hymns to a patriot prince who would overcome corrupt faction, a chivalric, redemptive, and martial Protestant hero. Henry Brooke’s play Gustavus Vasa (1739), which is this idiom at its most majestic, was banned by the censor. Belshazzar and Samson in Handel’s operas belong to the same tradition. There were also literary reminiscences of several Prince Hals, and a new cult of the Saxon hero King Alfred. In Gilbert West’s Order of the Garter (1742), the chivalry of the white plume sweeps away the mercenary politicians and crafty courtiers. James Thomson’s poem Liberty (1735–6), in which the goddess Liberty embodies the spirit of public virtue, won for its author a pension from Frederick. A key opposition demand was for a forward foreign policy, Protestant and imperial, in place of Walpole’s fiscal pacifism. This encouraged cults of Queen Elizabeth and Sir Walter Raleigh, and recollections of the defeat of the Spanish Armada. Thomson penned 71

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The ancien r´egime and its critics a masque, Alfred (1740), for which he wrote the lyrics of ‘Rule Britannia’. The meaning of the word ‘patriotism’ became steadily transformed, retaining its implication of selfless public service and vigilance for liberty, while also acquiring a new sense of celebration of nation, seafaring, and military prowess abroad. Orchestrating the opposition to Walpole’s ‘Robinocracy’ was Lord Bolingbroke, whose dazzling early career as a Tory statesmen was wrecked after 1714 by the Hanoverian and Whig ascendancy. He briefly went over to the Jacobite court in France, and endured exclusion from the House of Lords as a condition of parole when he was allowed to return from exile.21 His exclusion from parliament forced him to lead the Country movement with his prolific pen, and to do so literally from the country, a circumstance which reinforced the cult of bucolic retreat, the purity of the garden in contrast with the corruption of the city. In that classically educated age, such an ideal was underwritten by the reading of Horace, Virgil’s Georgics, and Cicero’s Tusculan Disputations. The ideal achieved architectural form in Alexander Pope’s grotto at Twickenham, the home of frugal virtue, of the sage in the cave. Bolingbroke’s chief literary vehicle was the newspaper, The Craftsman, which lambasted Walpole for ten years, surviving many prosecutions. From the hundred essays which Bolingbroke wrote for it there emerged in book form his Remarks on the History of England (1730–1) and his Dissertation upon Parties (1733–4), followed by The Idea of a Patriot King, written in 1739 and published in 1749. Bolingbroke was an outlandish type of Tory, a deist and libertine, for whom the old Filmerian theory of the divine right of kings was an absurd superstition, and whose vision of English history can be reduced to what we now call ‘the Whig interpretation of history’. Through the centuries the English had struggled to entrench their liberties in a series of valiant conflicts against oppressive rulers. To oppose Walpole was to defend Magna Carta and the Petition of Right. Bolingbroke had a pressing need to remove from his movement the taint of Jacobitism, so he zealously adhered to ‘Revolution principles’. He also wished to fuse together a disparate opposition of Tories and dissident Whigs, so he announced the redundancy of the party 21 On the political thought (and the cultural and literary aspects) of the campaign of Bolingbroke and his circle, and the anti-Walpoleans see Armitage 1997; Atherton 1974; Burns 1962; Cleary 1984; Colley 1981; Cook 1967; Cottret 1995; Dabydeen 1987; Dickinson 1970; Downie 1984; ErskineHill 1998; Gerrard 1994; Goldgar 1977; Hart 1965; Kramnick 1968; Lock 1983; Loftis 1963; Mack 1969; Nicholson 1994; Pettit 1997; Pittock 1997, ch. 3; Rivers 1973; Rogers 1970; Skinner 1974; Smith 1995.

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The English system of liberty labels ‘Whig’ and ‘Tory’ and their replacement by ‘Court’ and ‘Country’. It was also necessary to disarm the notion that ‘opposition’ was inherently seditious, and this he did by relentless appeals to patriotism, and by elevating loyalty to the constitution over loyalty to the ministry. Walpole’s ministry was thus identified merely as a ‘faction’ masquerading as a government. Bolingbroke’s surpassing intellectual eclecticism encompassed Lockean natural rights, a Harringtonian theory about the balance of property and power, Saxon ancient constitutionalism, and Machiavellian warnings about the need to preserve civic spirit as the guarantee of liberty. Bolingbroke’s ideal of the Patriot King who would rule without corrupt courtiers was an echo of the Renaissance mirror-for-princes genre. In Bolingbroke, old Tory divine right theory, which he called ‘dressing up kings like so many burlesque Jupiters’, gave way to moralising about the princely virtues and dignities. There was in fact a substantial eighteenth-century literary tradition that dwelt on the princely virtues. Diverse examples include Mary Manley’s New Atalantis (1709), a programme of moral education for the future George II inspired by F´enelon’s T´el´emaque, Defoe’s Royal Education (1728), Charles Jennens’s libretto for Handel’s Belshazzar (1744), and Catherine Macaulay’s quasi-republican celebration of King Alfred in the 1770s. Defoe tends in modern interpretations to be identified as the relentless voice of a new middle-class world, but this neglects his frequent applause for heroic warrior princes (Schonhorn 1991). This powerful tradition of princely perfectibilism was Britain’s version of the philosophes’ admiration for philosopher-kings. In the latter part of the eighteenth century, princely perfectibilism could co-exist with republicanism. In the 1760s James Burgh wrote his Political Disquisitions (1774–5), which became an admired textbook for Anglo-American republicans, and yet he also wrote ‘Remarks Historical and Political’, an address to George III inviting him to take on the mantle of a patriot prince (Hay 1979a, 1979b; Zebrowski 1991). Bolingbroke’s salience perhaps threatens a misreading of what Toryism had become. The crypto-Jacobitism of Thomas Carte’s History of England (1747–55), which attributed the ancient healing power of the Royal Touch to the Stuart Young Pretender, was still grounded in the sanctity of patriarchal hereditary right. Yet undoubtedly even Jacobitism took on a Bolingbrokean hue. The Jacobite Pretender’s declaration of 1750 was entirely Bolingbrokean: it offered annual or triennial parliaments, a militia in place of a standing army, and the retrenchment of placemen. This Tory and 73

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The ancien r´egime and its critics Jacobite embrace of Country ideals created fertile ground which in some circumstances (such as Wolfe Tone’s Irish rebellion of 1798, or the Scottish Catholic conspiracies of the 1790s) would make a transition from Jacobitism to Jacobinism easily achievable. Likewise the Tory populism of men like William Beckford, who advocated a wider franchise in the Monitor (1750s), carried over into the Wilksite parliamentary reform movements of the 1760s and beyond. Moreover, while it is tempting to regard the Country voice, quintessentially in Alexander Pope, as nostalgic, pessimistic, bucolic, and anti-commercial, that voice could equally be, as in James Thomson, expansive, commercial, and imperial. One of Bolingbroke’s most enduring influences lay in his impact upon Montesquieu, who was his guest in England between 1729 and 1731. The famous account of the English constitution in the Spirit of the Laws purports to be descriptive, but it is grounded in Bolingbrokean prescription (Mason 1990; Shackleton 1961). Its ‘doctrine’ of the separation of powers, of the need particularly to prevent the executive from trespassing upon the legislative power, was the ideal type of the Bolingbrokean assault on placemen. Capturing a moment of transition in British constitutional evolution, Montesquieu hesitated uncertainly between two typologies, one of harmony and balance between the three estates of the realm, king, Lords, and Commons, the other of harmony and balance between the three functions of government, executive, judicial, and legislative. It so happened that in early eighteenth-century Britain these two conceptions could be mapped one upon the other: the king headed the executive, the Lords supplied the supreme judiciary, and the Commons was the principal legislative body. The ancient doctrine of estates thereby gave way imperceptibly to the modern doctrine of functions. There was, however, never in Britain a separation of powers or functions of the sort Bolingbroke and Montesquieu seemed to envisage. It is true that there were moments in early eighteenth-century Britain when the Country party’s ambition to achieve the complete statutory exclusion of officers of state from membership of the legislature was within sight of achievement. Had it been achieved, then the executive and legislative arms of government would have become truly separate. But in Britain no such constitutional transformation has ever come about. Instead, the ideal became a commodity for export. In drawing up the constitution of the United States, Montesquieu’s American readers succeeded where the British antiWalpoleans failed. 74

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The English system of liberty 10

The Court Whigs

In modern scholarship, Bolingbroke’s luminaries have overshadowed the ideology of the Court Whigs.22 Walpole did, however, command extensive intellectual support, notably from Lord Hervey and Bishop Hoadly as well as a team of sophisticated journalists, including William Arnall and James Pitt, who supplied him with a mouthpiece in the London Journal. Their urgent task was to absolve the ministry from the charge of ‘corruption’. Trading in veneration for such Whig heroes as Locke and Sidney, they did obeisance to Whig pieties. James Pitt called himself a ‘True Whig’, an ‘Old Whig’, ‘as thorough a Whig as any man now living’ (DG, 29 Nov. 1735). Yet, despite the insistence on loyalty to ‘Old’ Whiggery, a distinctive doctrine of ‘modern liberty’ emerged, which owed more to an analysis of the postRevolution polity than to the teachings of the Old Whigs. The Court Whig theorists aimed to show that the Bolingbrokean catalogue of complaint was historically obsolescent, and that Roman republican moralising was so much daydreaming. The most forthright statement of the ‘modern system’ was Hervey’s Ancient and Modern Liberty Stated and Compar’d (1734). For him, liberty dated only from 1688. Pitt likewise pronounced that the ‘British monarchy is, since the late Revolution, better than the Roman commonwealth was in all its glory’ (LJ, 4 Apr. 1730). This was because the Revolution ‘fixed and settled’ that liberty of person and property which had been impossible ‘till the power of the barons was destroyed by Henry VII, and the power of the church by Henry VIII’ (LJ, 1 Sept. 1733). The Court Whigs were impatient with Ancient Constitutionalist notions of Saxon liberties. There was no Ark of the Covenant of liberty handed down from Teutonic forebears. Medieval institutions were the product of feudalism, not reminiscences of, or deviations from, a Saxon constitutional idyll. Consequently ‘the so much boasted and celebrated Magna Charta’ was ‘no contract with, nor grant to, the people. It was only some concessions to the churchmen and barons, which the power of their swords wrested out of the hands of the king’ (C, 6 Apr. 1734; LJ, 23 Mar. 1734). Neither Roman maxims nor Saxon myths had any place in modern times. Nor, as Arnall’s Clodius and Cicero (1727) 22 On the political thought of the Court Whigs see Browning 1982; Burtt 1992, ch. 6; Dickinson 1977, ch. 4; Downie 1984; Forbes 1975, ch. 6; Gunn 1983; Horne 1980; Targett 1991, 1994; Urstad 1999. The following passage is especially indebted to Targett 1991 and 1994. Abbreviations: BJ = British Journal; C = Craftsman (after its takeover by Walpole); DG = Daily Gazetteer; FB = Free Briton; LJ = London Journal.

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The ancien r´egime and its critics made clear, was there a place for the mythology of Spartan simplicity and the deprecation of ‘luxury’. Modern liberty marched hand in hand with modern commerce. The Court Whigs offered an analysis of the modern constitution. They paid ritual homage to the doctrine of the balanced constitution, but they argued that, far from there being an imbalance in favour of the king’s ministers, the tendency of modern history was for power to move towards the commoners and hence their representatives in the House of Commons. James Harrington provided the tools for analysis. It was argued that since the sixteenth century the balance of property and power had shifted decisively towards the Commons, who were by now masters over king, nobles, and church. The balance of the constitution was ‘already strongly on the side of the Commons, because the wealth of the kingdom [was] with them’, so that it was ‘almost impossible that [parliamentarians] should lose their independence’ (LJ, 23 Feb. and 16 Mar. 1734). Since the constitution was not self-equilibrating, it was now necessary to enhance the crown’s executive authority deliberately, in order for government to be conducted at all. Accordingly, the use of ‘influence’ was imperative if the king was not to become a cipher like the doge of Venice. The power of patronage was thus an ‘equivalent’ to compensate for the fact that the king had no ‘real power’ and was in danger of becoming wholly dependent on the legislature. The king’s business must be done, and it could not be done in some semblance of the anarchic Polish Diet where every member had a veto. A commonwealth of wholly independent gentry was only one step away from national ungovernability. Complaints against a standing army were similarly judged to be inapposite. The army was ‘not a standing royal army, but a national army, raised by the people, for the safety of the people’ (LJ, 12 Feb. 1732). In so far as the army was an executive instrument for the public safety, it was one which restored to the crown ‘real weight in the constitution’ (FB, 21 Feb. 1734). In modern times ‘all the world is armed; every nation has disciplined troops, managed horse, and trains of artillery’ (LJ, 2 Jan. 1731). The ancient ideal of the citizen militia was therefore another dispensable myth. These themes were accompanied by a stress upon the arts and skills of government. The Walpolean authors displayed an anti-utopian distrust for the intellectual luxuries of opposition. Prudence, experience, and pragmatism, not Platonic schemes for political perfection, were needed. The opposition was, wrote James Pitt, ‘wild with the fancies of Plato’s commonwealth, Sir Thomas More’s utopia, and other visionary schemes of government, not 76

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The English system of liberty reducible to practice’ (LJ, 20 July 1734). Hoadly agreed: ‘government is a matter of practice and not of speculation’ (LJ, 26 Oct. 1723). In Augustinian mood, the Walpoleans showed how rulers must work with the grain of fallible human nature. Arnall’s essays on Machiavelli, Hobbes, and La Rochefoucauld reveal a marked distance from the moral optimism of his contemporaries. ‘Violence and rapine seem to be [man’s] great characteristics’; ‘we talk of social virtues . . . but in fact, there are very few (I believe none) who have not the same propension to oppress in more or less degree, and who do not devour, if they can, whatever may be a desirable prey’ (BJ, 16 Nov. 1728). Government, therefore, provides the power needed to protect people from the tyranny of their marauding fellow citizens. The best that can be hoped for from government is ‘to reform by degrees, to gain upon inconveniences, and regulate society with moderation’ (FB, 9 Apr. 1730). The argument for the necessity of placemen, together with this unheroic view of human nature, combined to produce the assertion that men may, indeed must, be tempted into office by material incentives. Pitt remarked that it was a ‘romantic notion, and mere visionary virtue’ to expect that ‘men in power and office should pursue the good of the public, without any regard to their own particular interest’ (LJ, 25 Sept. 1731). Arnall put it more bluntly: ‘there would be few candidates for power, if nothing beneficial was annexed to it’ (BJ, 3 Feb. 1728). Indeed, Bolingbrokean politics was regarded as no more than the politics of envy and disappointed ambition, forged into a corrupt alliance of sanctimonious Whigs, backwoods Tories, and treasonable Jacobites. The Court Whig case was, in sum, a ‘hymn to political management’ (Gunn 1983, p. 106). The Court Whig essayists produced a systematic analysis of the claims of modern executive power. It remained for David Hume to synthesise that outlook in his essays on luxury and the independence of parliament (1741– 2). For instance, his key contention, in ‘Of the Independency of Parliament’, is that ‘the share of power, allotted by our constitution to the House of Commons, is so great, that it absolutely commands all the other parts of the government’, particularly the power of the purse. Consequently, it was vital to rebalance the constitution by favouring the executive, so that the system of distributing crown offices, notwithstanding that it is invidiously called ‘corruption’ and ‘dependence’, is to ‘some degree . . . inseparable from the very nature of the constitution, and necessary to the preservation of our mixed government’ (Hume 1994a, pp. 25–6). Later, that other theorist of the modern system of liberty, Adam Smith, took up the parallel topic of armies, asserting ‘the irresistible superiority which a well-regulated standing army 77

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The ancien r´egime and its critics has over a militia’ and the irrelevance of militias after ‘the great revolution in the art of war’ that had occurred in modern times (WN, v.1.a). Hume’s and Smith’s position has been called ‘sceptical’ or ‘scientific’ Whiggism, for it pushed aside what they saw as the superannuated clich´es and sentimentality of old Whiggery (Forbes 1975, 1976). The doctrines of the ‘scientific’ Whigs helped to entrench what Walter Bagehot proclaimed in 1867 to be ‘the efficient secret of the English constitution’, namely ‘the close union, the nearly complete fusion, of the executive and legislative powers’ (Bagehot 2001, pp. 8–9). In spite of all the voices of opposition that were heard in the decades after the Revolution of 1688, this was, as Bagehot saw, the enduring essence of the English system of liberty that was bequeathed by the Revolution.23 23 I am much indebted to Clare Jackson for comments on a draft of this chapter.

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3 Scepticism, priestcraft, and toleration ri c hard h . p op k i n and mar k g ol d i e ∗

1

Scepticism, Judaism, and the natural history of religion

Philosophical scepticism, the questioning of the adequacy of evidence to justify any view or belief, and the questioning of the criteria for deciding intellectual issues in any domain whatsoever, reached its high point in modern philosophy during the eighteenth century. At the beginning of the century the complete edition of Pierre Bayle’s Dictionnaire historique et critique (1702) appeared, raising sceptical problems about matters in philosophy, theology, science, and history, and providing what Voltaire called ‘the arsenal of the Enlightenment’. Bishop Pierre Daniel Huet’s Trait´e philosophique de la faiblesse de l’esprit humain (Treatise on the Weakness of the Human Mind), a forceful presentation of Pyrrhonism, written at the end of the seventeenth century but published posthumously in 1723, became a sensation (Popkin 1993, p. 139). The Trait´e appeared twice in English, and in Italian, Latin, and German in short order. In 1718 the most scholarly edition of the writing of Sextus Empiricus was published by J. A. Fabricius, with the Greek text and Latin translations. This was soon followed by two printings of a French translation of Sextus’s Hypotyposes (Outlines of Pyrrhonism), and David Hume carried the sceptical analysis of human reasoning to its highest point in his Treatise of Human Nature (1739–40). A mitigated form of scepticism was developed by many French Enlightenment thinkers, culminating in the radical scepticism of Jean-Pierre Brissot and Condorcet in the last quarter of the century. These sceptical developments concentrated chiefly on questions of evidence and reasoning, and on the dubiousness of human judgements in the sciences, philosophy, and theology. Another facet of scepticism emerged just before the century began, and dominated much of the discussion, namely the application of sceptical analysis to the question of the truth of the Christian religion, or principal parts thereof, sometimes even advocating disbelief in ∗

Sections 1 and 2 by Richard Popkin, 3 and 4 by Mark Goldie. Richard Popkin died on 14 April 2005.

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The ancien r´egime and its critics Christianity or in religion in general. This became a principal meaning of ‘scepticism’ from then onward (Popkin 1979, chs. 1–2). The development of this scepticism against religion, and how it became one – if not the main – basis for religious toleration, will be traced here. The Renaissance rediscovery of ancient Greek sceptical thought, and especially of its major texts, the writings of Sextus Empiricus, had an impact upon the religious controversies of the Reformation and CounterReformation. Ancient Greek scepticism, Pyrrhonism, provided ammunition to both Catholic and Protestant polemicists, as well as providing a fideistic ‘defence’ of religion: since nothing can be known, one should consequently accept religion on faith alone, a view offered around 1700 by both the Catholic Bishop Huet and the Protestant Bayle. In the latter part of the seventeenth century sceptical arguments were turned against the special status of the Bible, and against the knowledge claims of the Judaeo-Christian religious tradition. Several developments played a role in bringing this about: the intellectual crisis caused by the re-evaluation of ancient polytheism; the work of the Bible critics, Isaac La Peyr`ere, Baruch Spinoza, and Richard Simon; the growing awareness of the criticisms of Christianity written by Jewish intellectuals in Amsterdam; and doubts about Judaism sponsored by the careers of such false Messiahs as Sabbatai Zevi (Popkin 1987a). One of the most potent attacks on religious traditions was the notorious Les Trois Imposteurs, Moses, Jesus, et Mahomet, ou l’esprit de M. Spinoza (The Three Imposters . . .), probably written in its present form in the last decade of the seventeenth century, but only printed in 1719 (Anon. 1994). (A Latin work, De Tribus Impostoribus, with a quite different content, purporting to be from the end of the sixteenth century, was also part of the clandestine literature of the time.) Les Trois Imposteurs circulated widely in a great many manuscripts found all over Europe and North America. Introductory materials attached to it pretend that the work was written by the secretary of the Emperor Frederick II in the thirteenth century. However the work uses critical views about religion that appear in seventeenth-century theorists including Hobbes, Spinoza, Gabriel Naud´e, and Franc¸ois La Mothe le Vayer, and quotes freely from them. It portrays the three great religious leaders as impostors, playing political roles for their own ends. It offers as an explanation of how and why religions develop the psychological evaluations provided by Hobbes and Spinoza. The possibility that such an attack on Judaism and Christianity (and Islam) could be available was mentioned quite often in the seventeenth century. There was discussion about whether such 80

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Scepticism, priestcraft, and toleration a work actually existed. Queen Christina of Sweden offered a huge sum for a copy. But manuscripts of the work only surfaced at the end of the seventeenth century and were quickly copied and dispersed. The same happened with the unpublished work of Jean Bodin, the Colloquium Heptaplomeres (Colloquium of the Seven about the Secrets of the Sublime, 1593), a fictional discussion between believers in various religions, in which the Jewish participant wins the argument. The work surfaced in the mid-seventeenth century, and manuscript copies were made. Leibniz and his associates prepared the text for publication, but it was not printed until the nineteenth century (Popkin 1988, pp. 157–60). The question of whether religious belief could still be sustained in the light of modern knowledge appears in Bishop Edward Stillingfleet’s attack on John Toland and John Locke. Stillingfleet feared that applying the empirical theory of knowledge to religious belief would simply lead to unbelief. A similar problem seems to have been involved when the French Reformed Church in the Netherlands declared it a heresy to seek clear and distinct evidence for religious belief (Carroll 1975; Popkin 1971, 1993). The actual content of religious belief came into question in the controversies between Jews and Christians at this time. In the seventeenth century some Jewish scholars, who had been raised as forced converts to Christianity in Spain and Portugal, and who escaped to the Netherlands, presented forceful critiques of Christian beliefs using the dialectical techniques they had been taught at Iberian universities. In the tolerant atmosphere of seventeenth-century Holland, these Jewish theorists could set forth their case without fear of punishment so long as they did not print their work. Instead, their attacks on Christianity circulated widely in manuscript (Kaplan 1989, chs. 9–10). Various deistically inclined people tried to obtain manuscripts, and finally in 1715 a group of them were auctioned in The Hague. The arguments in these manuscripts were described without comment in the final edition of Jacques Basnage’s Histoire des juifs (History of the Jews, 1716) – a book which, when it first appeared in 1706, was the first history of the Jews since Josephus. Considering the Jewish views, Basnage concluded that Christians should give up trying to convert Jews by arguments, since the Jews knew the materials better and usually won the debates. Instead one should leave the task of converting Jews to God alone. The Jewish anti-Christian arguments became known to such figures as Anthony Collins, Voltaire, and Holbach, and they were used as powerful ammunition against the Christian establishment. These widely circulated manuscripts sought to show that there was no evidence that Christianity 81

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The ancien r´egime and its critics is the fulfilment of Judaism and that there was no good evidence that the Messiah had yet come. Holbach published some of the arguments of the Jewish philosopher, Isaac Orobio de Castro, under the title Israel veng´e (Israel Avenged, 1770), thereby making them widely available. Some of the manuscripts found their way to Harvard University Library, and a New England preacher, George Bethune English, came across them. His Christian beliefs were thoroughly shaken. After consulting the rabbi of New York he converted to Islam (English 1813). These Jewish anti-Christian arguments could therefore undermine intellectual conviction in Christianity, and some of them were considered the strongest evidence against Christian belief (Popkin 1992, 1994). In one copy of Israel veng´e an unidentified reader wrote that Orobio proves by Sacred History that the Messiah has not yet come. A letter pasted in this volume states that Christians cannot answer Orobio’s claims.1 Zalkind Hourwitz, the French royal librarian of the Oriental collection in Paris at the time of the Revolution, asserted that one either had to abandon Christian claims of superiority over Judaism, or risk turning people into complete sceptics about religion (Hourwitz 1789). However, another kind of scepticism also developed against Judaism itself. One source was the intellectual debacle following the Jewish Messianic movement of 1666, and another was the growing treatment of the Old Testament as the secular history of a peculiar group of people of antiquity. Jews everywhere became excited when Sabbatai Zevi of Smyrna announced in late 1665 that he was the long-awaited Messiah, and that the Messianic age was beginning. He changed Jewish law and appointed his friends and relatives the new kings of the world. It is estimated that 90 per cent of the Jewish world at the time accepted him. A few months later the Turkish sultan had Sabbatei Zevi arrested and threatened with death. The ‘Messiah’ quickly converted to Islam, and lived the rest of his life as an Ottoman functionary. The Jewish world was swept by doubt and dismay. Many Jews began to question the nature of Messiahship, and how the sacred texts could be understood (Scholem 1973). Christian opponents suggested that Jews lacked a trustworthy criterion for telling a true Messiah from a false one (Evelyn 1669; Leslie 1715). But freethinking people could equally suggest that Christians too lacked an adequate criterion for determining who was the Messiah. The historical knowledge upon which both religions depended began to be subjected to sceptical criticism, as in Voltaire’s article, ‘M´essie’ (Messiah) in the Dictionnaire 1 Biblioth`eque Nationale, Paris, R´es. D2.5193.

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Scepticism, priestcraft, and toleration philosophique. This involved the gradual transformation of ‘revealed’ truth into natural, secular facts, by treating the scriptures as ordinary human writings, best understood solely in the context of the human authors’ milieux. Hobbes, Spinoza, and the early English deists did most to advance this view. In his Tractatus theologico-politicus (1670), Spinoza said that the science of interpreting the Bible should be like, or almost the same as, the science of nature. La Peyr`ere, Hobbes, and Spinoza all pointed out discrepancies, inconsistencies, and contradictions in the Biblical texts, and maintained that Moses could not be the author of the Pentateuch. They dwelt upon problems of canonicity and transmission. Readers could not be sure that the Bible they now possessed was the same as the ancient texts, given all of the redactions and transmutations that had taken place in the intervening centuries. The greatest seventeenth-century Bible scholar, Father Richard Simon, revealed the apparently endless historical and textual problems that lay between the present-day reader and the original authors and texts (Popkin 1979). Over the next hundred years more and more problems were raised about whether one could be sure that Moses was the author of the first five books of the Bible, or whether they had one author, or whether the author or authors were divinely inspired. The sceptical side of the debate was summed up in Thomas Paine’s comment in The Age of Reason (1794–5): ‘Take away from Genesis the belief that Moses was the author, on which only the strange belief that it is the word of God has stood, and there remains nothing of Genesis, but an anonymous book of stories, fables and traditionary or invented absurdities or downright lies’ (Paine 1795a, p. 14). The consequences of scepticism about Mosaic authorship were drawn even more sharply by the Jewish writer, David Levi, who said that ‘if a Jew once calls in question the authenticity of any part of the Pentateuch, by observing that one part is authentic i.e., was delivered by God to Moses, and that another part is not authentic, he is no longer accounted a Jew, i.e., a true believer’. Levi then insisted that every Jew is obliged, according to Maimonides’s principles, ‘to believe that the whole law of five books . . . is from God’ and was given by Him to Moses. Christians should be under the same constraints regarding the Old and New Testament, for ‘if any part is by once proved spurious, a door will be opened for another and another without end’ (Levi 1789, pp. 14–15). Spinoza claimed that we could understand the Biblical narrative in terms of the secular history of the primitive peoples of Palestine. He developed a thoroughgoing scepticism about the possibility of mankind having any 83

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The ancien r´egime and its critics access to supernatural information. This then allowed him to see all historical claims, Biblical or other, as just statements about how human beings behaved at various times and places. The fact that some people said that they received messages from God, or had revelations, was interesting data about those people and their psychological states, rather than reports of genuine divine communications. Reading scripture in this manner resulted in the Bible becoming an object in human history rather than a framework for explaining it (Tractatus, chs.1–7; Ethics, bk i, appx). David Hume, in the mid-eighteenth century, argued for a more modest sceptical claim, namely that it was extraordinarily improbable that any report of supernatural events was believable, and that it would always be more probable that the report was false. ‘No testimony is sufficient to establish a miracle, unless the testimony be of such a kind, that its falsehood would be more miraculous, than the fact, which it endeavours to establish’ (Hume 1951, pp. 115–16). At the end of the essay, ‘Of Miracles’ (1750), Hume suggested examining the Pentateuch as the production of a mere human writer and historian, rather than as the word of God. Then, we would see it as a book presented to us by a barbarous and ignorant people, wrote in an age when they were still more barbarous, and in all probability long after the facts it relates; corroborated by no concurring testimony, and resembling those fabulous accounts, which every nation gives of its origin. Upon reading this book, we find it full of prodigies and miracles. It gives an account of a state of the world and of human nature entirely different from the present: Of our fall from that state: Of the age of man, extended to near a thousand years: Of the destruction of the world by a deluge: Of the arbitrary choice of one people, as the favourites of heaven; and that people the countrymen of the author: Of their deliverance from bondage by prodigies the most astonishing imaginable. (Hume 1750, pp. 205–6)

This historical contextualism, and psychological evaluation of Biblical religion, led at the end of the eighteenth century to the religion of reason, and to what Kant described as religion within the bounds of pure reason, both of which accepted this desacralization of the central documents of Judaism and Christianity. Thus a radical scepticism developed about the significance of the JudaeoChristian religious tradition seen as other than an allegorical or mythological presentation of a code of ethics. This interpretation began around 1700 with the German convert to Judaism, Moses Germanus, and was then adopted by Johann Edelman and Hermann Reimarus (Grossmann 1976; Popkin 1994; Schoeps 1952). Jesus was seen as an inspiring ethical teacher, following a 84

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Scepticism, priestcraft, and toleration long line of Jewish moral leaders going back to the prophets. He had been unjustifiably deified a couple of centuries after the actual events, thereby creating a Christianity which had no basis in historical fact. The Christian story could be, as the Trait´e des trois imposteurs said, an imposition foisted upon the human race, a story perpetuated by manipulative priests and politicians in order to control people through fear and superstition. Churches and religious and political institutions were established to carry this on from generation to generation even though it was fundamentally a fraud or hoax generated to gain and keep political power. This charge was taken seriously enough by two leading English theologians, Ralph Cudworth and Edward Stillingfleet, for them to try to raise countervailing doubts about the possibility of such a conspiracy. They sought to show the implausibility of so many people in so many times and places keeping up the imposture for so many centuries, without anyone detecting the fraud (Cudworth 1678; Stillingfleet 1662). English deists, starting with Charles Blount (who published the first English translation of any of Spinoza’s writings), saw Spinoza’s naturalistic reading of the Bible as supporting their own view that the Bible as we know it is only one of many human attempts to portray a natural religion in specific cultural terms, an attempt which is open to comparison with many differing ancient and modern pagan versions from various parts of the planet (Blount 1683; Champion 1992; Popkin 1991). This was coupled with Bayle’s reading of the Old Testament narrative as comparable with any historical narrative, in which the characters, like the patriarchs and King David, can be judged in the same way as any other moral or immoral actors on the human stage. Bayle proceeded to show the immoral, dishonest activities of the heroes and heroines of ancient Israel to be as bad as those of pagan characters, of European kings and queens, and of religious leaders from post-Biblical times to the present. Bayle contended that there is no necessary relation between religion and morality, and that a society of atheists could be as moral as a society of Christians. He portrayed the ‘atheist’ Spinoza as an almost saintly figure, while painting contemporary Catholic and Protestant leaders as liars, hypocrites, and cheats. The story of Spinoza’s own religious career, centring on his excommunication from the Amsterdam synagogue, became a symbolic picture of the malign power of priests and priestcraft. The first biography of Spinoza, La Vie de M. Spinosa, by Jean-Maximilien Lucas (often found alongside Les 85

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The ancien r´egime and its critics Trois Imposteurs) created a lasting picture of the saintly Spinoza, victim of the religious intolerance of the priests of Judaism, the chief rabbi the epitome of the priestly tyrant. The Amsterdam Jewish community was portrayed as one of rigid outmoded orthodoxy, unable to endure a brave truth-seeker. So a horrendous excommunication ritual took place, and Spinoza had to flee. Although this was a misrepresentation of the Amsterdam Jewish community and its leaders, the legend persisted, and became crucial in the mythology of the sainted progenitor of the Enlightenment (Israel 1985, 2001; M´echoulan 1991). Added to this was the appearance of the autobiography of Uriel da Costa in the publication of the friendly debate between the tolerant Remonstrant scholar, Philip van Limborch (a close friend of John Locke) and Isaac Orobio de Castro (Limborch 1687). Da Costa, a Portuguese priest of Jewish origins, fled the Inquisition for Amsterdam. There he offered his own version of Judaism, and was excommunicated. He eventually recanted, was dreadfully punished, readmitted, and soon again was excommunicated. Finally he committed suicide. Until Limborch published it, his autobiography was unknown. It quickly was taken as more evidence of the hideous intolerance of religious establishments. Bayle, in the Dictionnaire, was not the only writer to wallow in the pathos of Da Costa’s case, and he became the intellectual forefather of Spinoza, the two men the twin victims of priestcraft. Near the end of his autobiography Da Costa cried out, ‘Don’t be a Jew or a Christian. Be a man!’ The English deists, impressed by the discovery of so many different kinds of religion in the ancient and modern worlds, developed a comparative study of religion, partly to understand what it represented in different times, places, and cultures, and partly to try to find an inner core in all religions that might represent the ‘ur-religion’, the original and natural religion of mankind. John Toland’s Christianity not Mysterious (1696), and Matthew Tindal’s Christianity as Old as the Creation (1730), sought to find pre-Christian or original Christian sources that constituted this basic religion, as well as to account for contemporary Christianity as a disastrous deformation of natural religion that occurred when an institutional priestcraft took over and controlled religion, supported by, and allied with, arbitrary political powers. The deists sought to show that ancient religion, stripped of unwarranted accretions, was a civic and ethical code, rather than a priestly, credal, and ceremonial religion (Champion 1992; Goldie 1993a). They took some of their inspiration from attempts by such Cambridge Platonists as Ralph Cudworth, in his True Intellectual System of the Universe (1678), to discern fragments of 86

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Scepticism, priestcraft, and toleration universal religious truth shining dimly through the local and often perverse traditions that had grown up among actual historical religions. The deists’ notion that, at bottom, much of Christian priestcraft was a design to wrest political and social power from the secular magistrate found expression in the penultimate chapter, ‘Civil Religion’, of Rousseau’s Social Contract (1762). Here Rousseau remarks that Hobbes ‘dared to propose reuniting the two heads of the eagle, and to return everything to political unity’ (SC, iv.8, p. 146). Deist religious anthropology also culminated in seeing all religions as natural human developments. By the middle of the eighteenth century, Hume could write a work entitled The Natural History of Religion (1758) in which polytheism was seen as the natural religion, which through psychological developments ended up as the fractious splintered warring views of theologians in the present. Oddly, however, scepticism could serve to bolster fideistic belief in Christianity as well as destructive doubt. Bayle contended, whether sincerely or not, that doubt must be put aside and Christianity accepted without or against reason, for faith is built upon the ruins of reason. Religious thinkers came to see the purported fideism of Bayle and even of Hume as a defence of religious orthodoxy. Bayle’s contemporary and erstwhile colleague, Pierre Jurieu, insisted that Bayle was ridiculing religion and was actually an atheist. But Bayle, for over twenty-five years, defended his fideism before the tribunal of the French Reformed Church of Rotterdam, answering Jurieu’s charges and those of other Calvinist ministers (Labrousse 1985, chs. 7–9). Later some theologians, especially in France, began to see Bayle as an ally in arguing that religion was built on faith and not reason (Kors 1990, ch. 7; R´etat 1971). Similarly, Hume ended his Dialogues concerning Natural Religion (c. 1750, publ. 1779), after destroying the cognitive value of arguments proving the existence of God, with an ironic ‘fideist’ observation: ‘To be a philosophical sceptic is, in a man of letters, the first and most essential step towards being a sound, believing Christian’ (Hume 1980, p. 89). Hume’s contemporaries, who called him ‘the great infidel’, would not have seen him as a ‘sound, believing Christian’. However, the German mystic J. G. Hamann read the passage in the Dialogues and proclaimed, ‘This is orthodoxy and a testimony to the truth from the mouth of an enemy and persecutor’ (Hamann 1821–43, i, p. 406; Merlan 1954). Bayle and Hume were transformed from heroes of the avant garde to allies of the ancien r´egime. Hume became a mentor of the Counter-Revolution in France, admired by Louis XVI and by Joseph de Maistre, the reviver of conservative Catholicism (Bongie 1965; R´etat 1971). 87

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The ancien r´egime and its critics 2

French scepticism and perfectibilism

In France, where Catholicism was the official religion and rigid control was exercised to prevent the spread of heretical or unorthodox ideas, one finds a covert spread of sceptical irreligious ideas from the Netherlands and England. Spinoza’s Tractatus appeared in French translation in 1678, Bayle’s Dictionnaire, and French translations of Locke and the English deists were read by rebellious intellectuals like the young Voltaire (Betts 1984; Verni`ere 1954). From this, two main developments stemmed, one a ‘rational’ scientific approach to natural and human knowledge within the bounds of a moderate scepticism, and the other an almost rabid attack on religious institutions and practices. The first was a distillation of what French thinkers saw as the empirical fruits of modern science in Isaac Newton’s accomplishments, in the translation into French of Locke’s Essay concerning Human Understanding (1700), by a friend of Bayle’s, Pierre Coste, who emphasised the sceptical themes in Locke’s philosophy, and in the moderate version of the total scepticism of Bayle and Huet. The latter himself had said at the end of his Trait´e that the sceptic should follow the attitude and practice of the Royal Society of England, which combined an epistemological scepticism about ultimate knowledge with a practical way of gaining useful scientific knowledge (Huet 1723, bk 2, ch. 10, p. 221). In the French version this practical scientific knowledge would help explain natural phenomena, and also would help promote understanding of mankind and its problems and provide ways of solving them. The traditional account of Enlightenment thought portrays it as a positive, even dogmatically positive, rejection both of tradition and sceptical doubt, in favour of the power of truth through reason. Condillac said that Bayle’s doubts were justified as long as there were so many dark, blind outmoded philosophies. But once modern science had gained ascendancy, the power of reason would lead people to new truths (Condillac 1947–9, iii, p. 22). However, a strong strain of scepticism persisted. Such leading figures as Diderot, d’Alembert, Condillac, and Maupertius accepted that our knowledge was based on sense experience, was very limited, and could not extend beyond experience to metaphysical reality. Within these sceptical limitations the empirical sciences of nature and of man could be developed, which the philosophes proceeded to do. These sciences within the bounds of a limited scepticism extended to what Hume called ‘the moral subjects’, psychological, social, and political questions. Hume’s Treatise of Human Nature 88

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Scepticism, priestcraft, and toleration was significantly subtitled ‘Being an Attempt to Introduce the Experimental Method of Reasoning into Moral Subjects’, the ‘experimental method of reasoning’ being, of course, that which Newton had so successfully applied to the understanding of natural matters. Hume’s essays on moral and political subjects, published from the 1740s, and quickly translated into French, provided a model for sceptically based social studies, examining man and society in terms of experience. Hume had called history the laboratory for examining human nature (Hume 1951, p. xxiii). The philosophes studied religion, political societies, variations in human nature, and human abilities in empirical terms. Where the physical sciences could improve human life by providing new sources of power, labour-saving devices, means of transport, and so forth, so the human sciences could lead to the reform of human institutions, so that, in the view of Turgot, there could be an indefinite progressive improvement in human life in the future. Turgot, a leading mathematician, economist, and politician, was Hume’s closest personal friend among the French philosophes in the 1760s. Turgot gradually realised, as reform projects became more important, that the limited scepticism of the philosophes was not compatible with the total scepticism of Hume. Turgot finally saw that Hume’s thoroughgoing scepticism actually completely opposed the philosophes’ programme for the reform of human understanding and society, and that Hume was in fact an enemy of what the philosophes considered ‘Enlightenment’. Hume had written to Turgot criticizing the view ‘that human society is capable of perpetual progress towards perfection, that the increase of knowledge will still prove favourable to good government, and that since the discovery of printing we need no longer dread the usual returns of barbarism and ignorance’ (Hume 1932, ii, p. 180). To show this, Hume cited what he considered terrible things that were happening in England at the time. Turgot replied that Hume should not be blinded by local events, but should consider the larger picture and realise that human beings and their knowledge are perfectible and that progress is inevitable. Turgot then said farewell to Hume, saying ‘Adieu, monsieur – car le temps me presse’ (‘Farewell, sir – time is pressing’). In 1777 the young Jacques Pierre Brissot de Warville, a journalist, and political commentator, one of the last philosophes, suggested to d’Alembert that they produce an encyclopedia of Pyrrhonism. The ageing editor of the Encyclop´edie seemed uninterested, but Brissot, then in his early twenties, worked away at the project, apparently begun in an extant unpublished 89

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The ancien r´egime and its critics ninety-page manuscript on Pyrrhonism.2 In 1782 Brissot published De la v´erit´e, ou m´editations sur les moyens de parvenir a` la v´erit´e dans toutes les connaissances humaines (Concerning the Truth, or Meditations on the Means of Approaching the Truth in all Human Studies, republished in 1792), exploring whether we can know anything with certainty in any of the sciences. Brissot’s work is, perhaps, the most extended presentation of French Enlightenment scepticism. He concluded that the sciences can never reach the final degree of perfection, and that it is necessary always to doubt. Because of sceptical difficulties and human fallibility, there is extremely little that we know with any certainty. He wanted to avoid any positive metaphysical views. We should confine ourselves to probabilities and practicalities, discovering within each science the limited truths that they will yield. He thought it would take him several years to do this. But, then, in a footnote, he said that if his work on legislation and politics permitted, in two or three years he could present a ‘tableau’ of these truths. A reasonable scepticism could, he thought, still yield political and social reform (Brissot 1792, p. 361n). He was visiting America, where he was about to establish a utopian republican community in Kentucky, when he learned of the revolutionary events in France, to which he returned and there became a leader of the Girondins. He was guillotined before he could complete his intellectual work. Turgot’s leading disciple, Condorcet, was an ally of Brissot in trying to end slavery and in advocating liberal reforms during the Revolution. Condorcet pushed the sceptical and optimistic sides of French Enlightenment thought to their highest levels. One of the best mathematicians of the age, he developed Turgot’s proposal to apply mathematics to human problems. Condorcet was also one of the few French readers of Hume’s Treatise of Human Nature. In fact he got his clue for applying mathematics to the social sciences from a confusing section of Hume’s text on chance and probability (Baker 1975, pp. 135–55). Condorcet developed an advanced sceptical epistemology and used this as support for his positive views and his belief in the unending progress of human knowledge. He criticised the sceptics for belabouring the obvious, ‘that neither in the physical sciences nor in the moral sciences can we obtain the rigorous certainty of mathematical propositions’, when, nonetheless, ‘there are sure means of arriving at a very great probability in some cases and of evaluating the degree of this probability in a great number’ (Baker 1975, p. 129). Condorcet held that we cannot arrive at a necessary science of nature due to human limitations. Empirically we can 2 Archives Nationale, Paris: 446/AP/21.

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Scepticism, priestcraft, and toleration observe what happens but not why it happens. Newton’s laws did not yield a guarantee that nature will always behave in certain ways and cannot act otherwise. We cannot attain logical demonstrative certainty in the study of nature as we do in mathematics. However, our uncertainty does not lead to complete scepticism. We can induce laws from empirical observations and intuitively recognise relations of ideas. These laws are only probable because we do not know if nature will be uniform, and therefore we do not know if the future will resemble the past. The development of the mathematics of probability allowed people to formulate a mathematics of reasonable expectation, provided that one presumed that nature would remain uniform. This mathematics does not inform us what will happen, but rather tells us what human beings can reasonably expect might happen. This conclusion is then the basis for the expectation that the moral sciences can then have the same sort of precision and exactitude as the natural sciences, and the same kind of certainty. So, in spite of sceptical questions, we can know with certainty about the empirical study of nature and of man and society, providing we can accept that nature and man will act uniformly. Both physical and human sciences can then be developed in terms of probabilities. Our knowledge in these areas can grow indefinitely, and can be used to improve the human scene. Hence, we can expect the indefinite progress of human knowledge, and the perfectibility of mankind. Hume’s doubts about humankind’s ability to improve the world led to his dismissal of believers in progress, expressed in his essay on ‘The Idea of a Perfect Commonwealth’ (1752): political projectors will do more harm than good. Nonetheless Condorcet spent the years before the Revolution offering solutions to problems such as eliminating slavery in the colonies. During the revolutionary period he was most active, writing up proposals for reforming education, law, hospitals, and prisons, and a liberal democratic constitution, projecting the politics of a future age until he died while imprisoned by the Jacobins. Condorcet and Brissot (who were friends of Thomas Jefferson and admirers of Benjamin Franklin) believed that in the liberal world that was emerging in the United States and the one they were trying to create in France, religion would no longer be a dominant and dominating force. They were minimal deists rather than atheists, and saw a thoroughly secular world arising in which people would not have to believe anything in particular. Theirs would be a completely tolerant world, in part because traditional religion was a system of superstition that was being superseded. Now, with enlightenment, humankind no longer needed churches and priests. Their function 91

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The ancien r´egime and its critics could be replaced by secular academies and scientific organisations which would lead people to the most probable truths, and to the knowledge that could improve the human condition. 3

The limits of toleration

Much eighteenth-century debate on the political and social implications of religion turned on the pressing and contingent problem of religious toleration. Minorities sought freedom to worship as they chose and sought equal rights as citizens; in this they continued to be opposed by dominant parties in church and state. The fulcrum upon which these debates turned was Louis XIV’s Revocation of the Edict of Nantes in 1685, the effect of which was to drive the Huguenots from France. Two hundred thousand fled, and in so doing brought the word ‘refugee’ into the language. Many who remained were forcibly converted, killed, or sent to the galleys. Within the Huguenot diaspora, a vigorous defence of toleration emerged. A fleet of tracts was published, such as Henri Basnage’s Tol´erance des religions (1684), Aubert de Vers´e’s Trait´e de la libert´e de conscience (1687), and Jacques Basnage’s Trait´e de la consience (1696). Two tracts achieved lasting influence. One was Pierre Bayle’s Commentaire philosophique (Philosophical Commentary, 1686). It was written in the aftermath of the death of the author’s brother in a French jail, after daily visits by a Jesuit priest who promised him release if he would recant. The other was John Locke’s Letter concerning Toleration, composed in 1685–6 and published in 1689. Locke of course was not a Huguenot but, as an exile in Holland close to this circle of Huguenot publicists (so much so that his anonymous tract was at first attributed to one of them, Jacques Bernard), it is appropriate to set him in this context.3 Almost as provocative as Louis XIV’s Revocation was the tragic paradox of Pierre Jurieu’s position. A Huguenot, an exile, and therefore a victim too, Jurieu nonetheless upheld the duty of the Christian magistrate to enforce the true religion. For him, the Revocation was evil only because it served a false religion. What gave Jurieu hope was an apocalyptic belief in the imminent overthrow of French power, for he believed that the providence of God would manifest itself in the conquering sword of King William III. Jurieu brought to Holland the panoply of Calvinist synodical authority, rooting out heretical deviations towards Arminianism and Socinianism within the exile 3 The literature on Locke on toleration is extensive. Key items include Bracken 1984; Cranston 1991b; Dunn 1991; Harris 1994; Marshall 1994; Waldron 1991. The best recent general account of toleration in Enlightenment Europe is Grell and Porter 2000. For the Bernard attribution: Bayle 2000a, p. 236.

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Scepticism, priestcraft, and toleration community. The synod in Amsterdam condemned the proposition that ‘the magistrate has no right to employ his authority to crush idolatry and prevent the growth of heresy’ (qu. Kamen 1967, p. 236). Bayle was sacked from his professorship for taking a different line. For Jurieu, toleration opened the door to unbelief, and the contents of Bayle’s Dictionnaire (1697) did little to assuage such fears. The pamphlet duel between the two men lasted many years.4 Bayle’s and Locke’s tracts became widely dispersed in the new century. Locke’s arguments were deployed in Brandenburg-Prussia by the Huguenot exile Jean Barbeyrac in the footnotes to his editions of Pufendorf. From Barbeyrac they passed to Louis de Jaucourt and Jean Romilly, whose articles in the Encyclop´edie, especially ‘Tol´erance’ and ‘Libert´e de conscience’, brought about the suspension of the Encyclop´edie’s publication in the face of condemnation by the parlement of Paris (Adams 1991; Zurbuchen 1995). If the Revocation was the quintessence of intolerance for the early Enlightenment, the case of Jean Calas was so for the later. In Toulouse in 1762 Calas, a Protestant, was tortured and executed for the alleged murder of his son who had supposedly converted to Catholicism. Through Voltaire’s Trait´e sur la tol´erance (Treatise on Tolerance, 1763) all Europe came to know of it. For good measure, the following year Voltaire added a translation of Locke’s Letter to his own tract. Calas was posthumously exonerated, and after the French Revolution a statue to him was ordered to be built at the place of his death (Adams 1991; Bien 1960; Gargett 1980). An oddity about the brutality of the Calas trial is that within a decade it came to seem aberrant. Tolerationist sensibility in France, at least among intellectuals, seems to have made some headway by the 1770s. In the 1680s many French intellectuals had defended the Revocation. Bishop Bossuet had done so. F´enelon, whatever his later notions, thought it right to organise the abduction of Calvinist girls. By contrast, in the 1770s many French authors pressed for relaxation of the laws against Protestants: Turgot, Malesherbes, Morellet, Le Paige, and Lafayette among them. In Hamburg, the tolerationist resolutions of the Patriotic Society founded in 1765 found more support than had its timid predecessor of the 1720s. This, however, is to begin to flatter the late Enlightenment’s own self-regard as to the progress of humane sensibility. At the close of the eighteenth century public commentators were apt to applaud edicts and laws for 4 On Bayle, Jurieu, and the political thought of the Huguenot diaspora see Bracken 1984; Dodge 1947; Kilcullen 1988; Knetsch 1967; Labrousse 1963–4, 1982, 1983; Laursen 1995; Simonutti 1996; Yardeni 1985.

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The ancien r´egime and its critics toleration as redolent of the spirit of the new enlightened age. Yet in practice the concessions made by European states were limited and grudging. In England the Act of Toleration of 1689 allowed public worship by Protestant Dissenters, yet excluded them from political offices; Catholics did not even gain freedom of worship. Accordingly, although Protestant worship was freed, Dissenters continued eloquently to demand civil liberty, notably in the campaigns of the 1770s.5 Not until 1791, at a moment when Christianity of every denomination seemed threatened by revolutionary atheism, were English Catholics allowed openly to worship; and not until 1828–9 were Catholics and Dissenters admitted to public office. The French Edict of Toleration of 1787 did not even address the question of public worship, but only made provision for certain civil liberties, principally the authentication of Huguenot births, marriages, deaths, and wills. In Austria, the Emperor Joseph II’s edict of 1781 allowed freedom of worship to Lutherans, Calvinists, and Orthodox, but not to others; it forbad non-Catholic churches to have spires or bells; and it left intact the Catholic clergy’s fees for the rites of passage. The Hamburg decree of 1785 put similar restrictions on church buildings, did not tolerate Mennonites or Jews, and retained the Lutheran monopoly on public office. Perhaps only under Islam, in Ottoman Transylvania, did the Christian religions have real equality of treatment. In general, throughout Europe, the concessions were modest, late, and resisted. They were also, for the most part, granted by the gracious, and revocable, fiat of rulers who did not concede the general principle that the state had no right to make impositions in religion. Hence, in the Rights of Man (1791–2), Paine protested that ‘Toleration is not the opposite of intoleration, but is the counterfeit of it. Both are despotisms. The one assumes to itself the right of withholding liberty of conscience, and the other of granting it’ (Paine 1989, p. 102). As these examples show, it is important to distinguish between different degrees of freedom granted to those who professed minority religions. Private worship, public worship, and admittance to the professions and political office were not the same things, and allowance of one did not necessarily entail allowance of others. In the German lands the presence or absence of spires and bells represented the contrast between exercitium religionis publicum and exercitium religionis privatum; in turn, there was the more restricted exercitium religionis domesticum. These were categories embodied in the religious 5 Fownes 1773; Kippis 1772. On the ‘Rational Dissenters’ see Barlow 1962; Clark 1985; Haakonssen 1996b; Kramnick 1990; and ch. 23 below. On toleration and the English Revolution see Grell et al. 1991; Walsh et al. 1993.

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Scepticism, priestcraft, and toleration provisions of the Treaty of Westphalia (1648), which brought to an end the Thirty Years War (1618–48). They were categories which entered the academic treatises of eighteenth-century jurists and were drawn upon in the Emperor Joseph’s edict of 1781. At an early stage, in some parts of Germany, the Westphalian settlement produced remarkable and diverse arrangements, exemplifying what might be called toleration by attrition, the result not of principle but of stalemate. Such arrangements could include the installing of rulers of alternating confessions, as at Osnabruck; the sharing of church buildings; and even a tri-confessional convent, as at Schildesche near Bielefeld (Grossmann 1979, 1982; Whaley 2000, pp. 179–81). Toleration continued to be regarded with suspicion throughout Europe, and it would be a mistake to suppose that by the age of Enlightenment the tide had turned decisively towards acceptance of religious pluralism. This was neither the case in practice nor in debate. Arguments for intolerance continued to be upheld throughout the century. Not least among these was the deployment of a phrase in St Luke’s Gospel, ‘Compel them to come in’ (Luke 14:23). A gloss upon this as providing divine sanction for pastoral coercion was first enunciated by St Augustine in his battle against the Donatist heretics in the fifth century. The Catholic pulpits of Louis XIV’s France regularly resorted to this claim, as did the Anglican pulpits of England prior to the Toleration Act (Goldie 1991c). Bayle’s classic tolerationist treatise has as its full title Commentaire philosophique sur les paroles de J´esus Christ ‘Contrains les d’entrer’ (A Philosophical Commentary on the Words of Our Lord, ‘Compel them to Come in’). He argued that the persecutor who invoked Luke is a kind of antinomian, for to persecute is to allow the word of God to overrule the laws of natural morality. Any literal interpretation of scripture which promotes moral iniquity must be a false reading (Bayle 1987, i.1, p. 28). The argument from Luke remained persistent enough to require constant addressing by the friends of tolerance. Edward Synge, a rare Protestant voice in Ireland arguing for the relaxation of the penal laws against Catholics, took the critique of the conventional reading of Luke to be his task in a sermon called The Case of Toleration (1725). Later, Kant adverted to the argument from Luke in his Religion innerhalb der Grenzen der blossen Vernunft (Religion within the Boundary of Pure Reason, 1793) (Kant 1838, p. 253). During the century, the defence of intolerance turned increasingly towards the claim that toleration was a licence for religious indifference and heresy. Behind toleration, its critics claimed, there sheltered not so much diversity of faiths, but rather scepticism and atheism. On this ground, 95

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The ancien r´egime and its critics the French clergy powerfully resisted relaxation of the laws against the Huguenots right up to the eve of the Revolution. Orthodox Huguenots themselves continued to be fearful that toleration mishandled would unleash Socinianism and deism: some Huguenots were distinctly uncomfortable at having Voltaire’s advocacy on their side in the Calas case, and Voltaire was in turn irritated at their ingratitude (Adams 1991). In Hamburg, and throughout Germany, Johann Melchior Goeze, ‘Der Inquisitor’, author of more than 100 tracts, kept up, until his death in 1786, a barrage of arguments on the perniciousness of toleration. ‘To have been attacked by Goeze was almost in itself to be enlightened’ (Whaley 1985, p. 151). In Italy, in the year of the French Revolution, Tommaso Vincenzo Pani, Dominican inquisitor in the Papal States, continued to argue for the necessity of the Inquisition for the preservation of religion in his On the Punishment of Heretics (Davidson 2000, p. 230). Not all arguments for intolerance were strictly theological. Often they turned upon the alleged temporal dangers posed by minority groups. Even in the mid-eighteenth century French Catholics still denounced Calvinists as fanatics, republicans, and rebels. The canard that Calvin had authorised the murder of heretic children continued to be spread. The stain of the sixteenthcentury wars of religion, and of successive waves of Calvinist rebellion, was impossible to cleanse. When the Huguenot pastor Antoine Court wrote his Histoire des troubles des C´evennes (1760) he was at pains to dissociate modern Huguenots from their forebears who had staged the Camisard rebellion of 1702, notwithstanding the fact that the Camisards had been courageously resisting state oppression of their religion. Antoine portrayed the rebellion as a primitive peasant jacquerie, with barbarisms committed on both sides (Haour 1995). Another charge against the Calvinists was that they were not themselves believers in toleration. Calvin’s burning of Servetus for heresy in 1553 was constantly mentioned. The Servetus case allowed Catholics to say that the demand for toleration was merely a Machiavellian plea by the weak, who would abandon the tenet if ever they gained power (see Bayle 1987, pt 2, ch. 5). Voltaire, no friend to persecution, used his Si`ecle de Louis XIV (The Age of Louis XIV, 1751) to congratulate Louis on presiding over a growth of manners which rendered Calvinistical dogmatism a superannuated idiom of a darker age. In his Trait´e sur la tol´erance (Treatise on Tolerance) he wrote that in earlier times the Huguenots had been ‘drunk with fanaticism and steeped in blood’ (Voltaire 1994c, ch. 4, p. 22). The point for Voltaire was that toleration was possible in modern times now that barbarism was receding and 96

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Scepticism, priestcraft, and toleration all sections of society had advanced towards civility. Voltaire was vehement in his attacks on the madness of much of the Calvinist tradition. His defence of Calas was in part a retort to accusations that he was indifferent to the actual injustices suffered by contemporary Huguenots. In Protestant states, the case against tolerating Catholics tended to turn less on the old claim that there was a godly duty to repress popish ‘idolatry’ and ‘superstition’ – in the age of Pope Benedict XIV and Muratori even Catholicism could seem enlightened in Protestant eyes – but rather on the question of whether Catholics could be good citizens. If Catholics owed their ultimate allegiance to a foreign temporal power, the papacy, and if the papacy still claimed a right to depose heretic princes, then Catholics were unsafe. Worse, if Catholics still held that ‘faith need not be kept with heretics’, then they were guilty of dissolving all the ties of mutual trust which held society together. The case of Jan Hus, the proto-Protestant who was given a safe conduct to attend the Council of Constance in 1415, and who was then arrested and executed, was endlessly charged against Catholicism. As for the papal deposing power, as late as the 1790s the British prime minister William Pitt sought the opinion of European universities as to whether it was the authentic doctrine of the Catholic Church: they pronounced that it was not. In 1791 the Irish radical Wolfe Tone averred that ‘in these days of illumination’ the doctrine of the pope’s temporal supremacy was too absurd for anyone seriously to believe it. Accordingly, he concluded, Catholics had now transcended their self-incurred impediments to citizenship (Tone 1791, pp. 34–5). Locke’s Letter concerning Toleration was a crucial text in the Anglophone world in shifting the basis of anti-Catholicism away from the older preoccupation with ‘idolatry’ and ‘superstition’. For Locke, the fact that Catholics held absurd beliefs was of no political consequence, but the fact that they held dangerously uncivil opinions was. What mattered for him was the empirical question of whether Catholics still upheld the papal deposing power and the rightness of ‘not keeping faith with heretics’. As an English Catholic priest remarked in 1791, ‘since Locke published his letter on toleration the dispute has been less whether the Catholic tenets be true or false, than whether they are reconcilable with the principles of good government’ (qu. Fitzpatrick 1977, p. 3). If edicts and laws for toleration were limited in scope, if the case against toleration remained persuasive, the arguments in favour of toleration were, correspondingly, seldom expansive. Rarely did they defend a general entitlement to freedom of thought and expression, or advocate a diversity of ways of life as valuable in itself. They did not, in short, advocate secular pluralism. 97

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The ancien r´egime and its critics Toleration was not often grounded in thoroughgoing religious scepticism, in the claim that because we cannot be certain of any religious belief we cannot plausibly enforce it. Bayle might seem a candidate, for his Dictionnaire was, and is, read as an encyclopedia of covert Pyrrhonism. But though he had a sturdy sense of human fallibility, he probably remained a Calvinist believer, and he did not base his tracts for toleration on radical doubt. The argument from radical doubt would not, in any case, help in dissuading persecutors from coercion, since persecutors tend to be wholly convinced of their possession of the truth. Bayle sought arguments that might appeal to the prudence of persecutors given their own standpoint. For example, he made much of the argument from reciprocity. If persecution is permissible to those who believe that they know the truth, then any group holding such a belief will consider themselves licensed thereby. Consequently, dominant groups in every nation, whatever their religion, will persecute their minorities, and the true religion will not thereby be served. To counter this argument by saying that persecution is only permitted to those who do really have the true religion, and not to those who falsely think they have the true religion, is fruitless, because every religion fervently believes itself to be the true one, and in different nations different religions hold power. If it is right for Catholics to oppress Protestants in France, it will be right for Protestants to oppress Catholics in England, and for Muslims to oppress Christians in Constantinople. Therefore, if we wish to protect the welfare of fellow believers everywhere, toleration is the prudent policy (Kilcullen 1988). As has been noted, arguments from sceptical doubt played only a minor role in the case for toleration. Few people claimed that the state should not uphold Christianity because Christianity was not true. On the contrary, the premise of many arguments for toleration was that the question to be addressed was what it was proper for the state to do in the face of an ‘erring conscience’. How should the state treat someone who holds a false belief or wishes to practise an heretical faith? Given that Christianity (Catholicism, Protestantism, or whatever) is true, what are the legitimate and appropriate ways of inculcating it? Perhaps only Spinoza, the lapsed Jew, stood beyond this confined framework (Israel 2001, pp. 265–70). The framework of debate could be extraordinarily limited. In the 1770s in France the principal material issue was the authentication of Huguenot marriages, births, and testaments. A potent rebuke to the Catholic state was that its intolerance had the effect of spreading immorality among Huguenots, for by not licensing Huguenot marriages, Huguenot men could be rid of 98

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Scepticism, priestcraft, and toleration their inconvenient wives and unwanted children. Toleration of Huguenots would therefore stiffen public morality. This was Lafayette’s theme when he wrote to George Washington in 1785: it shamed the Catholic state that Huguenot ‘wills have no force of law, [and] their children are to be bastards’ (Poland 1957, p. 71). Another, quite different, example of the restricted and apparently arcane purlieu of debates about toleration was the claim, developed since the Reformation, that foreign embassies were entitled to keep chapels for the practice of otherwise disallowed religions. Modern international law on the extraterritoriality of embassies in fact owes much to quarrels over embassy chapels. The chapels mattered considerably, since attendance at their worship was rarely confined to diplomatic staff. The embassy chapels thereby became fortresses of religious diversity within important metropolises (Grossmann 1979). A yet further special case of arguments for toleration was the millenarian defence of charity towards the Jews, readmitted to England by Oliver Cromwell in 1655. Here the ground for tolerance was an apocalyptic reading of scripture: the conversion of the Jews was a necessary prelude to the fulfilment of prophecy and the end of earthly time. In France in 1785 the Academy of Sciences of Metz posed the question, ‘How to make the Jews happy and useful in France’. The Abb´e Henri Gr´egoire, in his prize-winning Essai sur la r´eg´eneration physique, morale et politique des Juifs (Essay on the Physical, Moral, and Political Regeneration of the Jews, 1789), insisted on the necessity of the moral and political regeneration of the Jews in order to prepare them for the millennium. He advocated their personal freedom and political rights as a means to this end. 4

Arguments for toleration

If we turn to what might be called the mainstream of Enlightenment arguments for toleration, we notice, as was remarked above, the common premise that the question to be addressed was the state’s treatment of the ‘erring conscience’. Arguments for toleration were broadly evangelical in nature. They were confessional, not secular, and they debated toleration and the relationship of the church to the state within the context of the Christian duty to evangelise. They began from the belief that all people should be of the true religion and that all godly people should seek to put an end to heresy and schism by winning over the errant and godforsaken. The crucial question was whether, in bringing about this desired end, it was legitimate or feasible 99

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The ancien r´egime and its critics to use the powers of the state, either minimally, in the form of restrictions on freedom of action by minorities, or maximally, in the form of forced conversion. Locke, in his Letter, declared that ‘I would not have this understood, as if I meant hereby to condemn all charitable admonitions and affectionate endeavours to reduce men from errors; which are indeed the greatest duty of a Christian.’ The issue, rather, was whether ‘force and compulsion are to be forborne’ (Locke 1983, p. 47). Even for Locke, therefore, toleration was closely tied to pastoral issues for the evangelising Christian. A book like Pietro Tamburini’s On Ecclesiastical and Civil Tolerance (1783) was as much a pastoral handbook on the handling of people lost in intellectual error as it was a sustained defence of toleration (Davidson 2000, pp. 239–40). The Emperor Joseph II wrote to his mother in 1777 that he wished that everyone in their realm was a Catholic: the issue was only one of toleration, not of approval of heresy (Chadwick 1981, p. 434). The question was what it was appropriate for the civil power to take in hand, notwithstanding a prince’s or a subject’s pastoral duties as Christians. Evangelical tolerationists came to the view that it was neither right nor necessary to use the state as an instrument of conversion. Strictly speaking, the point was that it was not right that any agent should use coercion, although in practice this meant the state, as the state had the monopoly of authorised force. Several reasons were adduced for this conclusion. First, Christianity was a religion of meekness and charity. Persecution was therefore un-Christian. ‘Blessed are the meek’, Jesus had proclaimed in the Sermon on the Mount. Locke went so far as to say that toleration was ‘the chief characteristical mark of the true church’ (Locke 1983, p. 23). ‘If you want to be like Jesus Christ, better to be a martyr than a hangman’, wrote Voltaire (Voltaire 1994c, ch. 14, p. 98). Second, it was said that most of the things that divided Christians from one another were not essential to Christian belief and practice. The errancy of Christian brethren was generally in minor matters, not necessary for salvation. In this argument, a strongly eirenic, or Erasmian, strain flowed from the Reformation through the Enlightenment and onwards. Christian faiths, it was said, had a common core, God had not prescribed this or that way of worship, and much of dogmatic theology was mired in tendentious earth-bound metaphysics rather than enlivened by simplicity of faith. The differences of the churches were so many Babels of scholastic jargon. Such eirenicism could even extend across the divide of Catholic and Protestant. Schemes for the reunification of Christendom regularly surfaced, often called Cassandrian or Grotian by their critics, after the attempts 100

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Scepticism, priestcraft, and toleration at reunion proffered by Georg Cassander in the 1560s and Hugo Grotius in the 1640s. Leibniz brought together the Catholic Cristobal de Spinola and the Lutheran Gerhard Molanus in the 1680s for discussions towards a common creed. Archbishop William Wake of England corresponded with the Genevan liberal Calvinist J. A. Turretini in the 1720s in search of an agreed minimal common doctrine, which would put aside speculative nonessentials and differences that were derived only from custom and tradition. The theme was pursued in Germany by such Pietists as Auguste Franke. In other hands, the eirenic case for tolerance merged into a general indictment of priestly dogmatism, or priestcraft, priestertum, the persecutory spirit of clerics who were said to be always in search of temporal weapons to enhance their own authority and wealth. Pombal, chief minister in Portugal, devoted his Brief Relation (1758) and Exposition of Facts and Motives (1759) principally to assaults on Jesuit tyranny, and on their clerical empire, an empire of a literal kind, that over native Americans in Latin America. Pietro Giannone’s Istoria civile del regno di napoli (Civil History of the Kingdom of Naples, 1723) was a plea for tolerance in so far as it was a chronicle of priestly and papal oppression. Eirenical encyclopedias began to treat Christian denominations eclectically, finding spiritual heroes within diverse traditions. Often Platonist in inspiration, this Erasmian tradition revived in Ralph Cudworth’s True Intellectual System of the Universe (1678), which sought out fragments of eternal truth amid the rubble of historically and culturally diverse religious traditions, non-Christian as well as Christian. A similar enterprise was Gottfried Arnold’s Unparteiische Kirchen- und Ketzerhistorie (Impartial Ecclesiastical and Heretical History, 1699–1700), which Thomasius urged that his students must buy even if they had to starve or beg to get it (Grossmann 1982, pp. 131–5). J. L. von Mosheim’s Institutione’s historiae Christianae (Institutes of Ecclesiastical History, 1755) likewise sought to understand the different manifestations of Christian truth, free of confessional partisanship. Johann Jakob Brucker’s great compendium of philosophical traditions, Historia critica philosophiae (1742–4), cited Grotius for the motto of his approach: ‘as there never was any sect so enlightened as to see the whole truth, so there never was any sect so erroneous as to be entirely destitute of truth’. The eirenic case moved imperceptibly into an ethic of sensibility, of pity, of simple horror at the human cruelty so often perpetrated in the name of religion. In the Biblioth`eque germanique of Isaac de Beausobre there are scarcely arguments as such for toleration, rather a litany of affecting narratives of the senseless sufferings of myriad Christian sects over the centuries, whose 101

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The ancien r´egime and its critics members are shown to have been pious and virtuous, in spite of the variety and quirkiness of their Christian witness. Patiently he exposed the falsehoods in the black propaganda traditionally used against the sectaries, such as the suspicious frequency with which charges of sexual licence were levelled against them. The sheer ghastliness of the St Bartholomew’s Day Massacre of 1572 was an obvious topic. Louis Mercier’s play Jean Henauyer (1772) took as its hero a bishop who would not comply with the massacre of Protestants. A good deal of Voltaire’s polemics consisted of gruesome narratives of Christian brutality through the ages, the Crusades, the Inquisition, St Bartholomew, the Irish Massacre of 1641. His epic poem La Henriade (1723) dwells at length on the hideous brutality of 1572. ‘Intolerance has covered the earth with corpses.’ This was indeed, he claimed, a peculiar legacy of Christianity, for pagan Greece and Rome had known no intolerance in religion (Voltaire 1994c, ch. 4, p. 29). Alongside the exhortation to pity went the genre of satire. Jonathan Swift, in Gulliver’s Travels (1726), depicts a society viciously divided over whether the great founder of religion had intended that a boiled egg should be broken at the sharp or the blunt end, and whether high or low heels should be worn. A third and crucial element in the evangelical case for tolerance was a rejection of the logic of Augustine’s invitation to the Christian emperor to use force to bring the Donatists back into the fold of the church. The tolerationists argued that the idea of ‘forced conversion’ is based on a fundamental error. It is not actually possible to compel belief. Compulsion in religion cannot, in principle, achieve its stated end. The outward actions of the body can be compelled but not the inward convictions of the mind. Argument and persuasion are the necessary and only means of bringing about a change of belief, a change that ends with inner conviction. The use of force will not produce converts, but only martyrs or hypocrites. The case here was not a moral or theological one, but rather one that coercion in religion was, instrumentally speaking, simply irrational. It cannot be rational to use force, since it is impossible that force could be a means to its stated end, for between physical force and inner belief there is a radical disjuncture. ‘Penalties in this case’, wrote Locke, ‘are absolutely impertinent; because they are not proper to convince the mind . . . Penalties are no ways capable to produce . . . belief . . . Light can in no manner proceed from corporal sufferings’ (Locke 1983, p. 27). This point was constantly repeated. Pufendorf wrote that ‘force and human punishment will not lead to illumination of the mind and to a truly inner assent to dogma, but can only yield hypocritical obedience’ (qu. Grossmann 1982, p. 133). In Marmontel’s bestselling novel B´elisaire (1767), 102

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Scepticism, priestcraft, and toleration Belisarius defends tolerance against the Emperor Justinian: ‘With edicts one will only create rebels or scoundrels. The heroic will become martyrs, the cowardly turn hypocrite, while fanatics from all parties will be transformed into tigers on the rampage’ (ch. 15). The avoidance of hypocrisy might almost be said to be the characteristic mark of eighteenth-century debate about the ‘erring conscience’. It was a debate which saw a substantial shift of emphasis from the first to the second word in the phrase ‘erring conscience’. Objectivism about errancy tended to give way to subjectivism about conscience. If a person’s conscience remained stubbornly wrong-headed, what mattered was their sincerity, the authenticity of their search after truth. Faith, the holding of dogmas, gave way to being ‘of good faith’. Sincerity became the cardinal virtue, and conscience inviolable. Good acts are those done according to conscience, and we may have to defer to error, because the right of conscience is paramount, and motives and dispositions matter more than being right. ‘God is satisfied to exact no more . . . than a sincere and diligent search after truth’, wrote Bayle, for ‘it is enough if each one sincerely and honestly consults the lights which God has given him’ (Bayle 1987, ii.9, p. 182). The unmolested privacy of a person’s conscience was not necessarily construed as a right, juridically conceived, but rather as the proper spiritual condition of a soul earnestly searching after truth. Arguably, and as many commentators on Kant and Hegel have suggested, later doctrines of personal autonomy, of what is owed to conscience, perhaps also Romantic conceptions of authenticity, owed as much, in their stress on the right of conscience, to the Pietist strain in Lutheranism and the evangelical legacies of puritanism, as to the jurisprudence of the natural law tradition or the metaphysics of the unconditioned will. The ethic of sincerity did, however, steadily detach itself from its evangelical roots. Rousseau declared, through the voice of the Savoyard vicar in Emile (1762), that ‘True worship is of the heart. God rejects no homage, however offered, provided it is sincere’ (bk 4). The fourth claim of tolerationists, at least of the more radical among them, hung upon a functional distinction between the business of a state and the business of a church. It is not, they argued, the purpose of the state to save souls. The state exists for temporal benefits, to protect life and property. The church by contrast exists for eternal well-being and, though the church might excommunicate the errant, it has no physical power at its disposal. The prince is not a pastor; or, rather, he is not a pastor in his capacity as a prince; the prince is indeed a pastor just as other godly people are, but the fact of being a Christian gives no new powers or functions to the Christian 103

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The ancien r´egime and its critics ruler. Jesus Christ left temporal kingdoms exactly as he found them, for ‘my kingdom is not of this world’ (John 18:36). Because the function of the state is temporal, the only criterion by which the ruler could determine that a religious practice was inadmissible was if it injured the security of the state or its members. The ‘original, end, business’ of the state is ‘perfectly distinct’ from the church, wrote Locke. ‘The business of the laws is not to provide for the truth of opinions, but for the safety and security of the commonwealth.’ Thus, ‘the salvation of men’s souls cannot belong to the magistrate’ (Locke 1983, pp. 27, 33, 46). Voltaire, citing Locke, concluded that every citizen must be permitted religious freedom ‘provided always that he threatens no disturbance to public order’ (Voltaire 1997, ch. 11, p. 71). In the Social Contract Rousseau laid down that all religions must be tolerated ‘in so far as their dogmas contain nothing contrary to the duties of the citizen’ (SC, iv.8, p. 151). Or, earlier, Bayle: ‘In deciding which opinions the state should tolerate, the criterion should not be whether they are true or false, but whether they endanger public peace and security’ (Bayle 1987, ii.v). Of course, ascertaining which beliefs and practices do in fact constitute a danger to civil society is not easy. Locke, as noted earlier, thought Catholics must be excluded. He also thought atheists were intolerable, because ‘promises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist’ (Locke 1983, p. 51). Bayle, by contrast, shockingly did not exclude atheists. There are, he said, virtuous atheists and vicious Christians. Theistic belief by itself is no guide to how people will in practice behave (Schneewind 1997). Four arguments for toleration have been surveyed: that Christianity is a religion of charity, that differences between religions are mostly unimportant, that compulsion is irrational, and that saving souls is no business of the state. These four arguments were all expressed in Locke’s Letter and in many eighteenth-century writings, though the third and fourth were especially prominent in Locke, while the first and second tended to be emphasised elsewhere. These arguments could be framed evangelically, in terms of what the Christian can legitimately do to spread true religion. The third and fourth, however, most readily go beyond an evangelical framework, and we need for a moment to consider these arguments further, in order to point out some philosophical conundrums to which they gave rise. The third, that it is impossible to force a change of belief, depends upon a more general epistemology of belief, upon a claim about the relationship between states of mind and external causes. As such, it is an argument open to epistemic objections, which were made both at the time and subsequently. 104

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Scepticism, priestcraft, and toleration These claims run along the lines that compulsion, while not directly capable of achieving a change of belief, can shock and provoke an unreflective person into rethinking their ideas: force can be efficient in confronting an unwilling person with evidence and information, for example in the form of sermons or catechising or books. Force can ‘awaken’ and ‘arouse from lethargy’ those who refuse to examine the truth. A horse cannot be made to drink, but it can be led to water. After all, God himself induced trauma on the road to Damascus which led St Paul to rethink his beliefs, and Christians surely applaud the outcome. This is the argument – an Augustinianism grounded in analysis of states of mind – which was persuasively put in the 1690s by Locke’s High Church critic Jonas Proast.6 The fourth argument moves from an evangelical frame to a juridical one, for the claim that religion is no business of the state is a close ally of an argument about what people rationally choose as the remit of political authority when they establish civil government. It is at this point that Locke’s argument about the social contract in the Two Treatises of Government (1689) connects with his case for toleration in his Letter concerning Toleration. Religious coercion cannot be part of a contract entered into by people who have a rational consideration of their interests. To compel in religion cannot be a power ‘vested in the magistrate by the consent of the people’ (Locke 1983, p. 26). The tolerationist case here takes on a character that approximates to modern liberal political theory. Locke argued emphatically for a separation of church and state, for churches to be understood merely as ‘voluntary societies’, associations within civil society, and not bound up with the state. This was a marginal view in the eighteenth century, and it found almost no exemplars in practice. There were perhaps only two: revolutionary France and the United States. The Abb´e Gr´egoire, who spoke passionately for religious freedom in the Assembly in 1793, succeeded in passing a law separating church and state in 1795; it was soon repealed (see Gr´egoire 1793). More durable was the constitution of the United States, which specifically precluded Congress from making any law to establish a religion. Thomas Jefferson drafted similar clauses in the Virginia Act for Establishing Religious Freedom (1786), though by no means all the states of the Union disestablished their churches. Bayle was less emphatic than Locke on the score of the state’s support for the church. He partially adhered to older notions of the godly prince as 6 The quotations are from Bayle 1987, pt 2, ch. 1, pp. 87–8, where he considers this objection. For Proast’s objection, and its recent reiteration, see Goldie 1993b; Nicholson 1991; Vernon 1997; Waldron 1991.

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The ancien r´egime and its critics the ‘nursing mother’ of the church. A Christian prince should ‘send forth his doctors and preachers to confute heretics’; the church can expect that princes shall ‘protect and cherish it’, so long as they ‘do no violence to anyone’ (Bayle 1987, pp. 137–9). It should be reiterated that Locke himself, while giving no special place to the magistrate, did not exempt individuals, as Christians rather than as citizens, from a strenuous and mutual examination of their own and their brethren’s beliefs. His case is on behalf of tolerance of, not privacy for, nor indifference to, the mental states of others (Dunn 1991). That the minds of the devout will not succumb to coercion, and that the achievement of religious uniformity is no business of the state, were arguments that could be expressed in more politique forms. These forms amounted, on the one hand, to a ‘reason of state’ case which demonstrated that great damage was done to the economic prosperity of the state by the practice of intolerance, and, on the other, a psychological case about the perverse and destabilising effects upon minorities who are subjected to coercion. Tolerated minorities would become useful contributors to the nation’s commercial vigour. It was argued that intolerance had, as a matter of historical experience, been tried and found ineffective. It exhausted the police powers of the state while rarely being thorough enough to achieve even outward conformity. Intolerance provoked sedition, turning religious eccentricity into dangerous fanaticism. Here the claim that religious dissenters must be suppressed because they were rebellious was turned on its head: it was persecution which turned minorities into rebels, as a result of their desperation. Persecution generated in a suffering minority a psychology of dogmatic righteousness, of desocialised seclusion from the world, even a pathological yearning for martyrdom. (The pathologies of marginalised and alienated minorities were explored, for example, by Malesherbes in his M´emoire sur le marriage des protestants, 1785–6). Admit all minorities into the ordinary business of the marketplace and of communal self-government in town, village, and trade guild, and they would be normalised, made civil, their religion rendered a private and peaceful avocation. Religious fanaticism could be cured by people rubbing along together in public spaces. This was a theme in the ethic of ‘politeness’, the virtues Joseph Addison inculcated in the Spectator, in the 1710s, and frequently taken up in philosophic journals across Europe in later decades. It is a theme central to Voltaire’s Lettres philosophiques (translated as Letters concerning England, 1734). At the Stock Exchange in London, he observed, ‘Jew, Mahometan, and Christian deal with each other as though they were all of the same faith, and only 106

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Scepticism, priestcraft, and toleration apply the word infidel to people who go bankrupt’ (letter 6). In a world which was still close to an era when societies had been torn apart by wars of religion, commerce and sociability could seem a balm, instruments for the polishing of manners, and not least for polishing the barbarous manners of religious zealots (see Hirschman 1977). A pragmatic, politique case for toleration found a footing in the developing discipline of political economy. It was increasingly said that toleration benefited the economy. This claim had special salience because religious minorities often congregated in particular trades, and because such groups often emigrated, taking their skills with them, thus damaging the well-being of the society they left behind, by reducing its wealth and population. A prolonged debate turned on estimates of the demographic impact of the Revocation of the Edict of Nantes, negative for the French economy, and positive for Britain, Holland, and Prussia. In the 1730s the Abb´e Pr´evost, in his journal Le Pour et Contre (1733–40) underscored the economic damage done to France by the Revocation. Parallel debates occurred in more local contexts. The city-state of Altona in north Germany deliberately sought to build its economic strength upon a religious pluralism denied in its rival and neighbouring city-state of Hamburg, a fact not lost on the advocates of toleration within Hamburg. Syndic Nicolaus Matsen protested against the folly of the commercial harm done by the orthodox churchmen through their insistence upon placing restrictions on those who differed only in ‘a few dogmatic trivialities’. ‘Happy is the city’, wrote Johann Peter Willebrandt, ‘where one need only worry about how much the peaceful inhabitants and foreigners contribute to the common good, and not about what they believe’ (Whaley 1985, pp. 147, 158; cf. M´echoulan 1990). In the Austrian empire, when heresy broke out in Moravia in the 1770s, Prince Kaunitz counselled tolerance: persecution was contrary to the interests of the state and would depopulate the land. In Russia, Catherine the Great gave liberties to non-Orthodox Christians in her search for migrants to colonise the East. In many chancelleries, a preoccupation with demographic growth as the engine of economic development, and the phenomenon of the religious refugee with economically valuable skills, drove the case for toleration. In Britain’s case, the pragmatics were rather different. An economic case for tolerating Dissenters, who were concentrated in urban trading and artisanal communities, had indeed been persuasively made on behalf of Protestant minorities since the late seventeenth century. A century later, however, in the face of the growing turbulence of the American colonies, 107

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The ancien r´egime and its critics it was considerations of empire which drove forward emancipation for Catholics, particularly the necessity of guaranteeing the loyalty of Catholics in French Canada after their conquest by the British. The price of Canadian Catholic loyalty was the Quebec Act (1774) which guaranteed the freedom of Catholics. Many English Protestants were appalled that parliament should ‘establish’ Catholicism within the Empire. Yet the Quebec Act paved the way for a Catholic Relief Act for England (1778), which allowed Catholics to acquire and inherit property. In Ireland, with Edmund Burke’s help, Catholic freeholders secured the franchise in 1793. Hitherto, the friends of toleration on the European Continent were often unimpressed by Britain’s pretensions to toleration, given her treatment of non-Protestants in her imperial possessions, pointing especially to the brutality of the penal laws against Irish Catholics. An indigenous Irish claim for toleration found its first voice in Charles O’Connor’s Case of the Roman Catholics in 1755. It got impassioned support from Burke in his Letter to Sir Hercules Langrishe (1792), which became a text vigorously promoted by the Catholic Committee, alongside Wolfe Tone’s manifesto, An Argument on Behalf of the Catholics of Ireland (1791). Burke wrote that he could find nothing in the ThirtyNine Articles, the official doctrine of the Anglican Church, that ‘is worth making three million of people slaves’ (qu. Henriques 1961, p. 102). But, in practical politics, it was in North America that the dam burst, for the path to Catholic emancipation in the British Isles began with the Quebec Act. Even so, government calculation and the voices of tolerationist intellectuals were sharply challenged by the Gordon Riots of 1780. It is salutary to note that these, the most savage and destructive riots of the eighteenth century in Britain, had popery as their target. This has been a survey of the ways in which intellectuals, who were mostly believers, reflected on coercion in relation to their duty to assist the truth.7 Sometimes criticism of religious intolerance by Christians became indistinguishable from an assault on Christianity as such. We noted earlier the pervasiveness of anticlerical polemic against ‘priestcraft’. During the Enlightenment this polemic came to be shared by believers and unbelievers alike, the latter of whom held that all religion was merely a system of repressive falsehood. Churchmen, it was said, were not so much ignorant or foolish, but prejudiced, because they had a material interest in holding to their dogmas. Voltaire learned from Bayle above all other writers that the chief obstacle to rational judgement is not ignorance but prejudice, 7 This coda is chiefly owed to Wokler 2000b, pp. 75–6.

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Scepticism, priestcraft, and toleration and many of the French philosophes who adopted his campaign to ‘Ecrasez l’infˆame’ – ‘Crush the infamy’ – owed Bayle a similar debt. Bayle it was who fanned irreverence. A number of writers came to identify the acceptance of theological dogmas not as belief but as superstition. Increasingly among the philosophes of the latter half of the century, religious conviction came to be denounced as blind faith, at once barbarous and irrational. Even when they acted dutifully in accord with their own Christian scruples, they often supposed, contrary not only to Hobbes and Mandeville but also scripture, that human nature was fundamentally sociable, or, when they succumbed to the Pelagian heresy, that it was made of a pliant clay which could be cast in perfectible ways. What they could no longer accept, because it was no longer philosophically appropriate to do so, was the theological doctrine of mankind’s original sin, now regarded as a myth invented by clerics to regulate the salvation of gullible souls. At the heart of the philosophes’ commitment to the progressive education of mankind lay a crusade against all the dark forces of idolatry. ‘Civilisation’, a term which first acquired its current meaning around 1750, came progressively during the century to be identified with the abandonment of the trappings of religions, whose gospels, shrouded in mysteries and revelation, only obscured the truth. It was in reason’s light that philosophers of every denomination now sought to dispel the shadows in which their adversaries lurked. Voltaire, Diderot, Turgot, d’Alembert, and Condorcet joined Helv´etius, d’Holbach, and other materialists, in their perception of human history as one great struggle between the friends and enemies of enlightenment – between nefarious tyrants, priests, and barbarians, on the one hand, and civilised, educated, and liberated men of science and letters on the other. They held the arcane dogmas of Christian theology responsible for fanaticism and hypocrisy throughout history – for wars of religion, for the Inquisition, for bigotry everywhere. Philosophes who espoused ideas of toleration, grounded in conceptions of history and the progress of civilisation, sought to overcome mankind’s enthralment to gospels which stood in the way of each person’s attainment of worldly knowledge of the good and their desire to practise it.

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4 Piety and politics in the century of lights dale k . van k ley

An older historiography of the Enlightenment took the defence or rejection of Christian belief as its starting point and, dividing the world into ‘believers’ and ‘unbelievers’, regarded political thought as derivative of these groupings. Unbelief unleashed a ‘liberal’ assault on monarchy and social hierarchy, while belief came to the defence of these institutions, resulting in ‘conservative’ political thought (see, for example, Martin 1962). This model does justice to something that was incontestably new in the eighteenth century: namely, the emergence of emancipated, secular thought. Yet it is not without its limitations, chief among them being its underestimation of the ‘enlightenment’ of, and dissent within, ‘believing’ communities. Accordingly, this chapter explores the political ramifications of the divisions between ‘orthodox’ and ‘heterodox’ within eighteenth-century Europe’s believing communities. It asks to what extent the religious and theological differences separating Jesuits from Jansenists, orthodox Lutherans or Calvinists from Pietists, and High Church Anglicans from English Dissenters took the form of differing political visions, not only about the church but also about state and society. In so doing, it broaches the relationship between divergent religious sensibilities and differing kinds of political thought. The heart of the most ‘irreligious’ of Europe’s Enlightenments, France, should provide the acid test of any religiously oriented construal of eighteenth-century political thought. France, therefore, must be this European grand tour’s first and longest stop. 1

Gallicanism and Jansenism in France

The history of religious controversy in Catholic France during the eighteenth century is in part the history of the undoing of the Declaration of the Liberties of the Gallican Church of 1682. Promulgated by an extraordinary meeting of the General Assembly of the Gallican Clergy at the behest of Louis XIV, who was then in conflict with Pope Innocent X, that declaration proclaimed the king of France to be independent of the papacy in temporal 110

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Piety and politics in the century of lights affairs and the Gallican Church to be independent of Rome in matters of canonical and liturgical ‘usages’. It also subjected the papacy’s doctrinal decisions to the approval of the Gallican clergy in France, while subjecting both in turn to the authority of ecumenical councils in accordance with the decrees of the Council of Constance of 1414–18. The types of national and ecumenical councils that the Declaration contemplated were, like the assembly that promulgated it, composed primarily of bishops. This conception of the Catholic polity as a papal monarchy tempered by an aristocracy of bishops stood in asymmetrical contrast to the Declaration’s defence of an absolute French monarchy. No sooner, however, had this ecclesiastical and political ‘orthodoxy’ been proclaimed, than it came into tension with theological ‘orthodoxy’ as defined in opposition to French Jansenism, against which both the king and his bishops sought papal help. As early as 1693 Louis XIV disavowed the Declaration of 1682, or at least its conciliar provisions, and in 1695 he issued an edict reinforcing the authority of his bishops over a priesthood already infiltrated by Jansenism. This edict also fortified the clergy’s ‘spiritual’ jurisdiction over the sacraments and doctrine from challenges by the royal Courts already inclined to protect Jansenists in the name of the Gallican liberties as defined in 1682. But the monarch’s strategic retreat from the Declaration was as nothing compared with the royal rout represented by the final condemnation of Jansenism. Solicited by an ageing Louis XIV and promulgated by Pope Clement XI in 1713, the bull Unigenitus condemned not only many Jansenist propositions taken from Pasquier Quesnel’s R´eflexions morales (1693), but also some Gallican ones, such as the proposition that the Catholic Church was the whole ‘assembly of the children of God’. The controversy over this papal bull raged until 1770, making the French eighteenth century as much the century of Unigenitus as that of Enlightenment. Yet Clement XI would have found it difficult to single out uniquely ‘Jansenist’ propositions for condemnation from Quesnel’s treatise, for by the early eighteenth century ‘Jansenism’ had already coalesced with extraneous elements, Gallicanism among them, and the term now denoted more than the theological and moral legacy of the movement’s seventeenth-century founders. To be sure, eighteenth-century Jansenists never renounced that legacy: namely Cornelius Jansen’s (and St Augustine’s) insistence on a ‘fallen’ and ‘concupiscent’ human nature’s dependence on an ‘efficacious’ grace as opposed to a merely ‘sufficient’ grace that depended on the penitent’s free will; as well as the Abb´e de Saint-Cyran’s rigorous penitential requirement of signs of a ‘conversion’, characterised by contrition or true love for God, 111

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The ancien r´egime and its critics in advance of absolution and reception of the eucharist. But however preposterous Jean Filleau’s denunciation in 1654 of a Jansenist plot to destroy Catholicism by making the sacraments all but inaccessible to the faithful (Filleau 1654), it is true that eighteenth-century Jansenists further accentuated Saint-Cyran’s and Antoine Arnauld’s original strictures against frequent communion. And however absurd Filleau’s charge that the Jansenists plotted to disguise Calvinism as Catholicism, it is also true that Jansenism, like Calvinism, accented the infinite distance between a uniquely majestic God and concupiscent humanity below. Indeed, from the perspective of the monarchy Jansenism’s exaltation of God and demotion of everything else was one of its original political sins, implicitly demoting sacral kingship. A final salient characteristic of Jansenism relevant to its political theology was its stark moral contrasts: natural innocence before the Fall and the degeneracy of everything since, the righteousness of God alone and the unworthiness of everything else, and the non-existence of morally indifferent acts. To these doctrinal and penitential inheritances the eighteenth century added its keen endorsement. Although Lemaistre de Sacy’s vernacular Bible dated from the seventeenth century, eighteenth-century Jansenist biblicism was more militant, adding several new translations and insisting on their being read by the laity. This biblicism included the Old Testament, inspiring Jansenism’s penchant for the Psalms and some of its hymnody. It also inspired another theological development, the hermeneutic called ‘figurism’, whereby the Old Testament was read as prefiguring the New and both in turn as prefiguring contemporary events, such as the bull Unigenitus, as well as events to come, such as the return of the prophet Isaiah and the conversion of the Jews. That hermeneutic, together with persecution, lay not only behind the miracles produced around the tomb of the Deacon Pˆaris in the Parisian cemetery of Saint-M´edard in the late 1720s, but also the ‘convulsions’ that succeeded them (Maire 1998, pp. 250–326, 378–440). The most salient feature of eighteenth-century Jansenism, however, was its rapid and dramatic politicisation. While the movement’s perceived potential for subversion and characteristic appeal to the individual conscience may have accounted for persecution in the first place, it took Louis XIV’s destruction of the Jansenist centre at Port-Royal, Cardinal Fleury’s shower of lettres de cachet, the systematic purges of the priesthood, the religious orders, and the Sorbonne, and the public denial of their sacraments, to bring that potential to the point of active expression. The process culminated in its attacks against Chancellor Maupeou’s reform and purge of the French parlements in 1771. 112

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Piety and politics in the century of lights Commenting at the height of that protest in 1772, the radical journalist Pidansat de Mairobert welcomed Jansenism’s help against the ‘hydra’ of ‘political despotism’ and its transformation into ‘the party of patriotism’ (Mairobert 1774–6, ii, p. 351). Politicisation began in earnest when, invoking the conciliar features of Gallicanism, four Jansenist bishops appealed against Unigenitus to a general council in 1717. Opposed by the government, the appeal highlighted the growing distance between absolutism and those parts of the Gallican legacy which now functioned as elements in an oppositional Jansenist ideology. In the absence of much episcopal support, the appeal also dramatised Jansenism’s support within the laity and lower ranks of the priesthood, to which Jansenist theologians responded by defining the church as the whole ‘assembly of the faithful’, including parish priests and the laity. This brand of Gallicanism or ‘Richerism’ hence defined itself against the Gallican bishops as well as the monarchy, holding that parish priests derived their sacerdotal mission directly from Christ rather than indirectly through the bishops and that, although jurisdictionally subordinate to bishops, they still had a right to attend both synodical and general councils as ‘judges of the faith’. In order to legitimate that ecclesiology, Jansenist theologians hardly had to rely on Edmond Richer’s condemned Libellus de ecclesiastica et politica potesta (Tract on Ecclesiastical and Political Power, 1611), and more typically appealed to unimpeachably ‘orthodox’ utterances by such fifteenth- and early sixteenthcentury Gallican Sorbonnists as Jean Gerson, John Mair (Major), and Jacques Almain (Gerson 1706). ‘Richerist’ ecclesiology also made room for the laity, if not as ‘judges of the faith’, at least as ‘witnesses to the truth’, competent to raise a ‘cry of conscience’ amidst the silence of a derelict hierarchy. In practice this lay t´emoignage meant the judicial milieu, especially the order of barristers in the parlement of Paris, to which Jansenist priests began to appeal against the adverse sentences of anti-Jansenist bishops and their ecclesiastical courts. The barristers responded with published judicial memoirs which were exempt from royal censorship, and which vindicated the intervention of the secular courts in such spiritual affairs. In their reading, inspired by William of Ockham and Marsilius of Padua, Gallicanism meant that the Catholic Church was a purely spiritual institution, an entire stranger to coercion and the ‘spirit of domination’, and subject to the state in all matters impinging on public welfare, including churchmen in their capacity as citizens. 113

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The ancien r´egime and its critics This line of argument received classic expression in Gabriel Nicolas Maultrot’s and the Abb´e Claude Mey’s two-volume Apologie de tous les jugemens rendus par les tribunaux s´eculiers en France contre le schisme (1752) which, as its title implies, justified the parlement of Paris’s attempt to prevent the public refusal of the sacraments of the viaticum and extreme unction to those who had earlier rejected Unigenitus, or who were otherwise suspected of Jansenism. This work drew some of its force from the authority of the Louvain canonist Zeghert Bernhard van Espen, whose much-cited Jus ecclesiasticum universum (1700) had laid down the patristic bases of antipapal episcopalianism and regalism. In adapting van Espen’s argument to the French situation, however, Maultrot and Mey stretched the Louvain canonist’s episcopalianism almost to the point of parochial congregationalism, and applied his regalism to the parlement of Paris, holding not only that it was the unanimous consent of Catholic churches – not just the general council – that ultimately validated doctrine, but also that the question of whether such validation had occurred was an ‘external’ fact which the ‘prince’ – that is, the parlement – had the right to judge. This radical version of the argument in turn undergirded the victory of the parlement over the episcopacy in the refusal of sacraments controversy of 1757, as well as its dissolution of the Jesuits in the 1760s (Van Kley 1984, pp. 149–65). It was also later to justify the Revolution’s nationalisation and radical reorganisation of the Gallican Church – the famous Civil Constitution of the Clergy – in 1790 on the grounds that diocesan boundaries, the mode of episcopal election, and the relation of the Gallican clergy to the papacy, were all palpably ‘external’ matters under the jurisdiction of the state alone, as opposed to purely spiritual dogmas defined by the church. Whether actual Jansenists had a hand in making or defending the Civil Constitution (they did) is less important than that the ‘Gallicanism’ invoked to justify it had been drastically radicalised by Jansenists, and was no longer as it had been defined in 1682. All these issues pitted the parlement of Paris against not only the episcopacy but also the crown. Herein lay the legacy of the sixteenth-century wars of religion, for behind the parlement stood a Protestant-seeming doctrine sponsored by an alliance of lawyers and Parisian priests, while with the monarchy stood the episcopal hierarchy. Although the parlement defended the king’s regalian rights against a theocratic church, it less conspicuously but no less surely redefined the monarchy in exclusively judicial terms – that is, as the parlement. 114

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Piety and politics in the century of lights One such attempt at redefinition was the Jansenist barrister Louis Adrien Le Paige’s immensely influential Lettres historiques sur les fonctions essentielles du parlement (1753–4), which revived Henri de Boulainvilliers’s argument that the whole Frankish nation had once met in general assemblies without whose consent the king might do nothing, that the medieval Estates General had succeeded the ancient assemblies, but that things had gone despotically downhill ever since (Boulainvilliers 1727). Following the apologists for the Fronde – the rebellion against the crown in 1648 – Le Paige substituted the parlement of Paris for the defunct Estates General, giving the French ‘nation’ a ‘representative’ institution which was alive and well in eighteenth-century Paris and in a position, if not to legislate on the nation’s behalf, at least to refuse to ‘register’ royal legislation that violated historic constitutional or ‘fundamental’ law. What gave Le Paige’s Estates General a Jansenist tonality despite its obvious indebtedness to earlier sources is that his parlement ‘testified’ or ‘witnessed’ to antique constitutional ‘truth’ amidst the defection of royal despotism, much as the appeal to Unigenitus had ‘witnessed’ to patristic ‘truth’ amidst the ‘obscurity’ of episcopal and papal apostacy. The dominant justification for resistance to the monarchy within the judicial milieu until around 1770, Le Paige’s constitutionalism tended to give way to what might be called a conciliar constitutionalism after that date, as Chancellor Maupeou’s temporarily successful reform and purge of the parlements revealed the limitations of these venal courts as effective ‘representatives’ of the national will. While this kind of constitutionalism reserved a place for the parlement as a judicial guardian of the nation’s constitutional laws, it held that the parlement resisted the king not by virtue of lineal descent from Frankish legislative assemblies, but by mandate from the temporarily inactive but more representative Estates General. What made this constitutionalism in some sense conciliar is that its chief architects, again drawing on the radical conciliarism of the fifteenth-century Sorbonnists, thought of the Estates General as the secular counterpart to the church’s ecumenical council. What made conciliar constitutionalism a potentially greater threat to Bourbon absolutism was its admission that, whereas a council ‘cannot make an aristocracy or democracy out of the monarchical government established by Jesus Christ himself ’, the nation assembled in Estates General ‘has the right to change the form of its government, when it has good reasons for doing so’ (Maultrot and Mey 1775, i, p. 269). Best expressed in Maultrot and Mey’s monumental Maximes du droit public franc¸ois (Maxims of French Public Law), conciliar constitutionalism culminated in the parlement of Paris’s 115

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The ancien r´egime and its critics appeal to the authority of the Estates General on 6 July 1787, resulting in the actual meeting of that body two years later. Thus there is a direct line of political thought and action that leads from the appeal of the papal bull Unigenitus to a general council in 1717 to the parlement’s appeal of the king’s fiscal edicts, and to the Estates General in 1787. One of judicial Jansenism’s most signal contributions to revolutionary ideology was therefore to help domesticate the thesis of national sovereignty in France by way of conciliar Gallicanism, as well as to warrant a certain version of French history. A conciliar and parochialised Catholic Church subjected in all externals to the monarchy, which was in turn legislatively subjected to the parlement acting on behalf of the nation – this version of Gallicanism is hardly that defined by the General Assembly of 1682, and did not sit well with either the crown or the Gallican episcopate. It therefore fell to the crown and bishops, aided and abetted by the Jansenists’ worst enemies, the Jesuits, to defend the political and ecclesiastical ‘orthodoxy’ of 1682 against the ‘heretical’ parlements aided by Jansenists. In contrast to the parti jans´eniste, this alliance of episcopal and Jesuitical defenders of monarchy and religion was known as the ‘pious’ or ‘devout party’ (parti d´evot). Like the early seventeenth-century party of the same name, this parti d´evot’s politics had roots in a particular religious sensibility. Natural in some ways, it is in other ways surprising that a parti d´evot should have defended anything calling itself Gallicanism. The early seventeenthcentury parti d´evot had grown out of the Catholic League, and was therefore frankly pro-papal or ultramontane; as such it opposed assertions of the temporal independence of the French king when proposed by the Third Estate in 1614. Papal exemptions from episcopal jurisdiction in addition to their vow of obedience to the papacy had once made the Jesuits in particular anathema to most Gallican bishops, attached as were the latter to Gallican canonical usages, and to their own jurisdictional authority. Time had altered these associations, however. The Jesuit at the royal Court had become a symbol of absolutism and French Jesuits had loyally stood by Louis XIV in his conflict with the papacy that led to the Declaration in 1682. Unigenitus further reconciled the parti d´evot’s rival commitments to papacy and monarchy, since to defend that bull was to defend the monarchy which had solicited it and tried to enforce it. Transforming ‘devout’ sentiment into a ‘party’ to an equal if opposite degree to that of Jansenism, Unigenitus added the force of reconciled interests to that of an inherited defence of divine right monarchy. 116

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Piety and politics in the century of lights Divine right absolutism’s notion of the king’s person as a palpable representation of divinity sat well enough with baroque piety’s tendency to fasten upon human institutions and tangible objects as conduits of grace and symbols of sanctity. A residual Aristotelianism enabled Jesuits especially to adapt to the century’s new emphases on experiential sense and sensibility, coming together as these did in the highly external affective cult of the Sacred Heart of Jesus, the ‘devout’ devotion par excellence, and a favourite at the French Court (Languet de Gergy 1729). Rather than simply add ‘moral reflections’ to the sacred text, as did Quesnel, ‘devout’ Catholicism would have gladly paraphrased the Bible as a proto-Romantic novel, as did the Jesuit Isaac Berruyer (Berruyer 1728–55). Even the ‘devout’ defence of human free will against Jansenist efficacious grace was politically apropos, since the Jesuits defended the legitimacy of the king’s mere will against judicial Jansenism’s tendency to reduce it to the parlements and to bind it by fundamental laws. The obvious danger in such a defence, however, was to blur Bishop Bossuet’s classic distinction between ‘absolute’ and ‘arbitrary’ government, and to be as unfaithful to the spirit of the Declaration of 1682 in one direction as Jansenists were in another. Already visible in the demand for submission to Unigenitus by such d´evot bishops as Etienne de La Fare of Laon and Jean Joseph Languet de Gergy of Soissons in the 1720s and early 1730s, the tendency to be more royalist than the king (La Fare 1730) – or at least than his first minister Cardinal Fleury – grew more pronounced in the 1750s and 1760s when a real parti d´evot took shape at Court while royal religious policy itself made concessions to the parlement in return for fiscal help in the Seven Years War. ‘Absolute’ monarchy became pretty ‘arbitrary’, at least in such definitions as that of the Abb´e Bertrand Capmartin de Chaupy who, maintaining in 1754 that the king was the ‘master’ and not just the administrator of his realm, laid it down that ‘the king is the state’, and that ‘the will of the king is the will of the state’ (Chaupy 1756, i, pp. 53–4). In the 1770s and again on the eve of the Revolution the same thesis was defended in secularized form by the incendiary journalist Simon Henri Linguet who had revolted against a Jansenist upbringing and published his first pamphlet in defence of the Jesuits (Linguet 1771, 1788). Some of the same brittleness clung to the d´evot defence of episcopal authority against Jansenist parochialism. Bishops alone ‘possessed’ the sacerdotal power given them by Christ, argued the Abb´e Le Corgne de Launay in 1760; to them exclusively belonged the right to delegate that power to cur´es and other subordinates. The ‘precious liberties’ of 1682, Le Corgne 117

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The ancien r´egime and its critics made clear, consisted in the distribution of sacerdotal power among an ‘aristocracy’ of bishops, but not among a dependent presbytery of priests (Le Corgne 1760, pp. 154, 336–7). If episcopal possession needed to be protected from Jansenist priests, then how much more so from their lay allies. In defending temporal power against papal pretensions, the Gallican Declaration, maintained Bishop Lefranc de Pompignan, ‘had not meant to confuse the true liberties of the Gallican Church with a shameful slavery which, against the institution of Jesus Christ, would enfief the ecclesiastical ministry to the secular power’ (Pompignan 1769, p. 348). It was of course to protect that spiritual jurisdiction that bishops and Jesuits exalted the power of the monarchy and called upon it to discipline the parlements. Comparing the parlement of Paris to the English parliament, d´evot defenders of the faith could claim to be upholding Gallican orthodoxy against judicial Jansenism’s ‘heretical’ tendencies towards Erastianism, parochialism, and laicism. But if in fact the monarchy’s religious policy did not much differ from the parlements’ or was powerless to impose its own policy, nothing remained for these Gallican bishops except to disavow ‘Gallicanism’ altogether and distance themselves from absolute obedience to the crown. This occurred in the case of the most ‘devout’ bishops during the decades of the preponderance of the parlements from 1750 to 1770. If forced to choose between being ultramontane ‘vicars of the pope’ on the one hand and ‘mandatories of the people’ on the other, he and his colleagues would choose the former, confessed Lefranc de Pompignan in 1769. For all practical purposes, he thought, the ‘ultramontane theologians’ maintained the church as a ‘mixture of aristocracy with monarchy’, whereas Gallicanism as interpreted by the Jansenist lawyers reduced it to the ‘tumults’ and ‘discords’ of ‘popular tribunals’ (Pompignan 1769, pp. 203–5). The absolute throne was absolute only vis-`a-vis lay subjects. To be sure, bishops and the parlements tended towards reconciliation after Louis XVI’s restoration of the old parlements in 1775, the two uniting in a common defence of ‘property’ against the monarchy’s attack on venal offices in the early 1770s and ecclesiastical immunities in the 1780s. That eleventhhour alliance in defence of privilege took the edge off episcopal absolutism and ultramontanism on the eve of the Revolution – so much so that the very last meeting of the General Assembly of the Gallican Clergy in 1788 actually remonstrated on behalf of the parlements and against the cardinalminister Lom´enie de Brienne’s offensive against them. The French bishops had become such ‘Gallicans’ and ‘patriots’ after 1775 that they meekly acquiesced in the nationalisation of ecclesiastical property by the Constituent 118

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Piety and politics in the century of lights Assembly in 1789, and the suppression of contemplative monastic orders in February 1790. It took nothing less than the National Assembly’s refusal to declare Catholicism to be France’s national religion in April 1790, and then the passage of the Civil Constitution of the Clergy during May and June, to shake the French bishops out of their uncharacteristically undogmatic slumbers and into the formation of something like a clerical–royal Right. It was then that proto-conservative ‘throne and altar’ again raised their hydra heads against a Protestant–Jansenist–philosophe plot to ‘destroy the Catholic religion in France’, in the works of the Abb´e Augustin Barruel (Barruel 1790) and the Comte Emmanuel d’Antraigues (d’Antraigues 1791), before becoming a watchword of full-blown conservatism in the works of Joseph de Maistre, the Vicomte Louis de Bonald, and the early works of Hughes-F´elicit´e de Lamennais. 2

The ‘Jansenist International’ in Italy, Iberia, and Austria

Such was eighteenth-century France, in which competing Catholic pieties made a religious contribution to the formation of both liberalism and conservatism despite the existence of a ‘third party’ of self-consciously anti-Catholic philosophes. But a virulently anti-Catholic – and, in some of its moods, anti-Christian – Enlightenment fully cognisant of its distance from all parties to religious controversies was unique to France. To what extent, therefore, is the French case instructive elsewhere in eighteenth-century Catholic Europe, in particular for Spain, Austria, and the Italian states? Obvious differences leap immediately to view on the other side of either the Alps or the Pyrenees. In none of these realms was there a ‘Gallican’ consensus liable to come undone, if by ‘Gallicanism’ is meant a tradition of conciliarist or episcopal, much less priestly, independence from the papacy. The only part of Gallicanism with a counterpart elsewhere in Catholic Europe was a tradition of royal independence from Rome and of control over the church – regalism or royal jurisdictionalism, or ‘cameralism’, as it was better known in the German lands. This meant that Gallican ‘liberties’ for bishops a` la franc¸aise had to be won rather than be defended, and that such bishops as wished to win them had to do so in alliance with the Catholic princes in a trajectory quite different from that of France. Such royal–episcopal alliances could be contemplated in Spain, Austria, and the Italian states because, in ironic contrast to the supposed French home of the Enlightenment, all of these Catholic realms boasted relatively ‘enlightened’ monarchs by the end of the century – most notably Carlos III in Spain, Maria Theresa 119

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The ancien r´egime and its critics and Joseph II in Austria, and Joseph’s brother Peter Leopold in Tuscany (see ch. 17). An ‘enlightened’ yet Catholic monarchy was a possibility in these realms because in them the Enlightenment was far less anti-Catholic – so much less so, indeed, that the notion of a ‘Catholic Enlightenment’ works well there in a way that it does not in France. Although ‘Jansenism’, or something at least called that, was not unknown to any of these realms, it tended to be a latecomer and is less easy than in France to distinguish from things ‘enlightened’ or even regal. For, in the absence of sympathetic estates or anything like the French parlements, Jansenism also looked to monarchies for support (Cottret 1998). The capital of the Catholic Enlightenment in Europe was Italy – indeed Rome itself – where it flourished under the long pontificate of Prospero Lambertini (Benedict XIV) from 1740 to 1758. Here there occurred an informal entente between ‘Enlightenment’ and papal infallibility that represented consensus, while ‘Gallicanism’, when it came, took on a radicalised form as a result of the Unigenitus controversies and hence represented the beginning of polarisation. As characterised by Bernard Plongeron, this Catholic Enlightenment elaborated a new ‘religious anthropology’ which insisted upon the rights of ‘reason’ within the bounds of a Christological religion, and was open to the possibility of secular amelioration within the bounds of a less rigidly hierarchical Christendom (Plongeron 1969, pp. 555–605). Catholic patrons of enlightenment hence tended to oppose Aristotelian scholasticism in favour of ‘purer’ patristic sources, notably St Augustine. They sympathised with textual criticism of the Bible, even translations in the vernacular, favoured less partisan ecclesiastical histories, even at the expense of the church’s reputation, and aspired to purge Catholic devotion of ‘superstitions’, both the ‘idolatrous’ veneration of the saints and the ‘external’ cult of the Sacred Heart of Jesus. These tendencies made the enlightened Catholic the successor of the Christian humanism of Pietro Bembo and Lorenzo Valla that had been driven underground by the adversarial reformations of the sixteenth and seventeenth centuries. ‘Reason’ had, however, not stood still in the meantime, orienting the Catholic Enlightenment more towards the observation of nature and the future than the somewhat Platonic ‘reason’ of the Christian humanists. That same ‘reason’ made enlightened Catholics critical of curialist claims to temporal authority and the clergy who defended them, notoriously the Jesuits. These traits, along with opposition to devotions, gave this Catholic Enlightenment common cause with what was called ‘Jansenism’. Thus one of the most salient characteristics of the Catholic Enlightenment outside 120

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Piety and politics in the century of lights France was its imperceptible shading into Jansenism. What also distinguished the Catholic Enlightenment, however, was its typically ‘enlightened’ distaste for ‘enthusiasm’ or ‘fanaticism’, shying away from the polemical vehemence typical of Jansenism. Hence advocates of Catholic Enlightenment tended to gravitate towards what Emile Appolis has called the Catholic ‘third party’ (Appolis 1960). Not to be confused with the ‘third party’ of anti-Catholic philosophes in France, this distinctively Catholic third party tried to remain equidistant from pro-Unigenitus and ardent curialist ‘zealots’ on the one side and anti-Unigenitus and radically Gallican Jansenists on the other. For although Unigenitus was nowhere as controversial and polarising as it was in France, it left its mark throughout Catholic Europe, forcing clergymen everywhere to define their own theological and ecclesial tendencies in relation to it. The person who best exemplifies at once the notions of a Catholic Enlightenment and a third party is Lodovico Antonio Muratori who, though a priest, spent most of his productive life as a librarian in the service of the duke of Modena. An admirer and historian of the primitive purity of apostolic Christianity, he cultivated an encyclopedic interest in secular novelty, writing tracts on electricity and extolling the theatre as a possible school for virtue. An opponent of the Jesuits’ ‘fanatical’ defence of the doctrine of the Immaculate Conception of Mary, Muratori admired the Jesuits as civilising missionaries in Paraguay and as enlightened hagiographers in the work of the Bollandists. A critic of popular ‘superstitious’ beliefs as author of Della regolata divozione de’ Cristiani, he urged the people’s material welfare as a reason for reducing the number of religious feast days (Muratori 1747) – the book was called The Science of Rational Devotion in its English edition of 1789. His espousal of ‘public felicity’ as opposed to the pursuit of glory and competitive raison d’´etat as the proper business of a paternal absolutism made Muratori an ally of most philosophes in political thought (Muratori 1749). Although as much opposed to philosophic unbelief as to sectarian heresy, truth was truth, he thought, even in the works of philosophes and heretics. But it was not possible to agree with everyone in religion, even in the unenthusiastic eighteenth century, and so Muratori engaged in sustained polemics on most of the matters he cared about: with Jesuits about devotion to the Sacred Heart and the doctrine of the Immaculate Conception, with Franciscans about the validity of ‘private’ revelations, and so on. A good Italian, he also accepted the thesis of papal infallibility, and with it the authority of the bull Unigenitus, putting him at odds with French Jansenists on the 121

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The ancien r´egime and its critics issues of grace and obedience, although sharing with them an interest in vernacular translations of scripture and liturgical reform. To be sure, Muratori could also be critical of the papacy, censoring the morality of individual popes in his histories and disputing its temporal claims to Comacchio in Modena in his own time. But Muratori’s concern was less doctrinal or juridical than moral, in the tradition of Lorenzo Valla’s critique of the Donation of Constantine. On the one occasion when Benedict XIV’s disapproval of some of his works became apparent, Muratori felt cut to the quick, protesting his good intentions and offering to retract anything heretical (Atti del convegno internazionale di studi Muratoriani, 1975). He need not have worried too much, because Benedict XIV shared most of his ‘enlightened’ and moderate instincts, as did many others in Italy in the first half of the Italian settecento, such as Giovanni Lami, editor of the Florentine periodical Novelle Letterarie. But the high noon of both an Italian Catholic Enlightenment and a third party began to pass with the death of Benedict in 1758. For it was then that the Abb´e Augustin-Charles-Jean Cl´ement de Bizon, a French Jansenist, undertook a trip to Rome, first to obtain a doctrinal statement from Benedict XIV favourable to French appellants, and then, after Benedict died, to observe and perhaps influence the papal election with the help of his Italian philo-Jansenist friends in the curia such as Cardinal Neri Corsini, his host in Rome (Rosa 1992). Influence the election, alas, they certainly did not. For the election of Carlo Rezzonico as Clement XIII followed by the death of the secretary of state Alberico Archinto and his replacement by the pro-Jesuitical Ludovico Maria Torregiani were in every way the catastrophes for the Jansenist cause that Cl´ement and his Italian friends thought they were. But the results were to be catastrophic for the Jesuits as well. The first result was the reinforcement and formalisation of what had been a desultory correspondence between Cl´ement and some Italian Augustinians – Giovanni Gaetano Bottari, first guardian of the Vatican Library and confidant of Cardinal Corsini; Giuseppe Simioli, a professor at the University of Naples and theological consultant to Cardinal Spinelli; Cardinal Domenico Passionei, a passionate enemy of the Jesuits if not a Jansenist; and eventually many others (Ambrasi 1979). Italian Augustinians and anti-Jesuits, they now entered the French Jansenist International. The second result was the suppression of the Jesuits in France. The first of the Jesuit dominos to fall, it is true, was in peripheral Portugal, where Sebasti˜ao Carvalho e Melho, the future marqu`es de Pombal and chief minister to Jos´e I, alleged the complicity of the Jesuits in an attempt on the 122

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Piety and politics in the century of lights king’s life in order to expel them from both the metropolis and the American colonies (Miller 1978). This Portuguese precedent revealed that the deed could be done, and no doubt encouraged the French to do likewise. Yet even more crucial for France was the advice that Cl´ement, Le Paige, and their cohorts received in late 1758 and early 1759 from their new Italian friends that, because the papacy would probably never disavow Unigenitus, their French co-belligerents should ‘attack the Jesuits from whatever angle that does not concern the bull or that unites them with the court of Rome’, that once the Jesuits were gone Unigenitus would no longer matter, and that France alone could rid Christendom of the Jesuits (Archives de la Bastille, MS 2883, fos. 152, 157). To be sure, neither Italian nor French Jansenists could have created the right circumstances – the bankruptcy of the French Jesuits’ mission in Martinique in 1759, the favourable disposition of the duc de Choiseul and his spectacular rise to power at the same time – but their close connections to the parlement of Paris through Le Paige are enough by themselves to account for the parti jans´eniste’s determination to profit from such circumstances as arose, providentially or otherwise. By 1764 the Society of Jesus was no more in France (Van Kley 1975). The fall of the Jesuits in France was also much more decisive than in Portugal – as decisive, indeed, as the Italian Jansenists had predicted it would be. Being, in effect, an international state within many states, the Jesuits suffered the adverse consequences of the alliance or third Bourbon ‘family pact’ negotiated by Choiseul between France and Spain in 1761, just as the parlement of Paris was striking the first decisive blow against the Jesuits in France. Alleging Jesuit complicity in a popular ‘Hats and Capes’ riot in Madrid in March 1766, Carlos III promulgated an edict expelling all Jesuits from metropolitan Spain and all the colonies a year later, whereupon he and Choiseul extended the terms of the family pact to include the aim of an eventual papal dissolution of the Society and put pressure on the Bourbon satrapies of Naples and Parma to follow the Spanish and Portuguese examples, which they respectively did in November 1767 and February 1768. When, however, tiny Parma tried to emulate France by asserting control over all ecclesiastical appointments and banning all papal briefs and bulls that did not carry the duke’s permission, an outraged Clement XIII struck back, issuing a brief annulling Duke Ferdinand’s edict, and fulminating a bull of excommunication – actions recalling medieval papal claims to temporal power and the spectre of their most extreme expression in the papal bull Unam sanctam (1302). Whereupon it was the turn of the Bourbons and 123

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The ancien r´egime and its critics their sympathisers in Italy to be outraged, as French parlements condemned Clement’s brief, French troops occupied Avignon and Naples and seized the papal enclaves of Benevento and Portecorvo – and raised the spectre of Philip the Fair (against whom Unam sanctam had been issued) if not the hated Hohenstaufens. Thus the initiative to expel the Jesuits returned to Italy like a boomerang, dividing Italian Catholics into latter-day Guelfs and Ghibellines. Thus too did France foist its polarised ecclesiastical situation on to Italy, ironically by Italian invitation, and thus the age of Benedict XIV ended in Italy. Nor did the pacific Lorenzo Ganganelli as Pope Clement XIV bring it back by formally dissolving the Company of Jesus by papal brief in 1773, as even many anti-Jesuitical Italian churchmen felt what they perceived to be the shame of papal capitulation in the face of what amounted to a Bourbon ultimatum. A more polarised religious situation developed in the wake of the ecclesiastical and political one. Without common Jesuit – and, to some extent, Franciscan – theological enemies, Dominicans and Augustinians increasingly turned on each other, accentuating the theological differences between them and producing what Appolis has called ‘the fragmentation of the third party’ (Appolis 1960). The rift became wider in the 1760s and 1770s, as Cl´ement in Auxerre and Dupac de Bellegarde in Utrecht engineered an avalanche of French Jansenist books that descended on their many Augustinian correspondents in northern Italy (Vaussard 1959). Unlike earlier eighteenthcentury Augustinian rigorists, the new generation took their ecclesiology as well as their theology from France, allying a radical or Jansenised Gallicanism with indigenous traditions of regalism. In reaction, Dominicans like Tommaso Maria Mamachi rushed to the defence not only of orthodoxy but also of the prerogatives of the papacy. It was above all in northern Italy – the republic of Genoa, the kingdom of Piedmont, Habsburg Lombardy, and the Grand Duchy of Tuscany – that a largely clerical ‘Jansenist party’ took shape towards the end of the century. Its ranks contained bishops like Scipione de’ Ricci of Pistoia and Prato, university theologians like Pietro Tamburini at Pavia, and priests like the Abbate Bartolomeo Follini, one of the editors of the Tuscan Annali ecclesiastici, an Italian counterpart to the Nouvelles eccl´esiastiques. Symptomatically, this periodical took the place of Lami’s more irenic Novelle Letterarie in Florence as the main organ of ecclesiastical news around 1780 and took a far more engaged and embattled editorial stance than had its literary predecessor. This Jansenist journalistic offensive provoked a proto-conservative 124

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Piety and politics in the century of lights response in the form of the Giornale ecclesiastico di Roma which, edited in Rome by Mamachi and Luigi Cuccagni, ran from 1785 to 1798. The high-water mark of anti-curial Jansenism in alliance with ‘enlightened’ absolutism came in the Tuscany of Grand Duke Peter Leopold in 1787. In that year Scipione de’ Ricci convoked a diocesan synod of his bishopric of Pistoia and Prato with the encouragement of Leopold and the theological guidance of Tamburini. The synod’s offensive against the excesses of baroque and popular piety maintained a certain contact with the Catholic Enlightenment of Lami and Muratori. But it also subscribed to a Jansenist doctrine of grace as well as endorsing the Gallican liberties as defined in 1682. To have embraced, as did this synod, a number of Quesnel’s formulations and explicitly recommended his R´eflexions morales to lay parishioners, gave an anti-papal flavour to a Jansenist conception of grace. By welcoming parish priests as ‘co-operators’ and ‘judges of the faith’, and by calling the papacy the merely ‘ministerial head’ of the church, the synod carried its anti-curialism well beyond the Gallicanism of 1682, and kept pace with the evolution of Gallicanism in France. What the Synod of Pistoia took from the papacy with one hand it was ready to give to the temporal ‘prince’, that is, Leopold, with the other, including the rights to set the diriment impediments to marriage, to reform or abolish religious orders, and to redraw parish boundaries (Bolton 1969; Lamioni 1991). Whether the synod would have been just as willing to vest those rights in an elected temporal assembly is less clear, for Leopold left Florence to take his deceased brother’s place in Vienna before implementing his plans to create such an assembly, and the reforms of the synod itself soon suffered shipwreck on the shoals of clerical and popular hostility. But the Jansenist veterans of the Synod of Pistoia were soon to be tested by the French National Assembly’s Civil Constitution of the Clergy, which enacted on purely lay authority many of the reforms that the synod had urged on Peter Leopold as grand duke of Tuscany. Some Italian Jansenists like Paolo Marcello del Mare of Siena predictably opposed the Civil Constitution on the grounds that the concurrent authority of the church in at least conciliar form was needed to implement it, but the editors of the Annali and Ricci himself took the lead in applauding it and entering into correspondence with the Abb´e Henri Gr´egoire, informal leader of the French constitutional church. The reception of the Civil Constitution prefigured Italian Jansenist reception of the Revolution itself when it came to northern Italy in the train of French armies during 1796–9. While some like Pietro Tamburini in his Lettere teologico-politiche 125

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The ancien r´egime and its critics (1794) remained attached to the ideal of enlightened absolutism as exemplified by Peter Leopold or Joseph II, and regretted the French Revolution’s violent disruption of indigenous ecclesiastical reform, more accepted the Italian republics with varying degrees of enthusiasm, ranging from Eustachio Degola’s distinctly Catholic Christian republicanism as editor of the Annali politico-ecclesiastici in Genoa to Giuseppi Poggi’s virtual dissolution of his Jansenist past in the heady solvent of Jacobinism as editor of the Republicano evangelico in the Cisalpine Republic. Thus, in Ernesto Codignola’s judgement, Jansenism provided a kind of bridge from Catholicism to the Risorgimento for many, perhaps indirectly even for Mazzini and Cavour, ‘in the end winning for the cause of liberty and revolution large circles of believers and clerics who would have remained unmoved by the attraction of enlightened rationalism’ (Codignola 1947, p. 312). Jansenist republicans were prominent enough to have attracted the attention of the editors of the Giornale ecclesiastico, and to have lent credence to the thesis that absolute thrones took leave of the infallible papal altar at their own peril. So long as it had been only absolute monarchies or royal duchies that had sponsored ‘Jansenist’ anti-papal ecclesiastical reforms, pro-papal polemicists in Italy had tended to pose as defenders of absolutism, putting monarchs on their guard against the political dangers of extreme ecclesiastical reform; while for its part the Giornale had been nothing if not nuanced, defending ‘true’ Augustinianism against Jansenism, and sometimes even the ‘moderate’ Gallicanism of 1682 against the Synod of Pistoia. But that stance changed after the events of 1789 in France sent a far sterner warning to monarchies than papal preachments had ever done, and the French National Assembly treated Europe to the spectacle of a radical Gallican reform of the church from ‘below’. It then became possible for Roman apologists – and exJesuits – like Rocco Bonola and Gianvincenzo Bolgeni to cut some of their losses with reformist absolutism and, with crucial theoretical help from Nicola Spedalieri’s De’ diritti dell’uomo (Rights of Man, 1791) to advance a neo-Thomist theory of the social contract that situated the obedience of lay subjects to their temporal sovereigns within a larger ‘contract’ obligating these same sovereigns to the spiritual authority of a hierarchical church. On this condition – an important one – the papal altar buttressed threatened thrones in the pages of the Giornale and other works by its editors, who also discovered Edmund Burke and the Abb´e Barruel, and denounced Jansenist complicity in a plot which had culminated in Jacobinism. By then the papacy itself had mustered the courage to condemn the Synod of Pistoia in the brief Auctorem fidei (1794), thereby joining the Giornale ecclesiastico in an increas126

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Piety and politics in the century of lights ingly strident and international defence of throne and altar (Pignatelli 1974, pp. 107–13, 139, 145–7, 151–203). That defence included the Spanish throne, which, however, took longer than the other Bourbon thrones to perceive its temporal salvation as standing or falling with papal infallibility. Indeed, Carlos IV refused to permit the publication of Pius VI’s Auctorem fidei until a full six years after its publication. It was only in the waning months of the eighteenth century that he and his chief minister, Jos´e Antonio Caballero, authorized this publication while simultaneously rescinding their ‘Gallican’ permission to Spanish bishops to grant matrimonial dispensations ordinarily reserved for the pope. Thereby they symbolically distanced the crown from the alliance with the cause of Jansenist Enlightenment against papal curialism that had been one of the hallmarks of the reign of Carlos III. The Spanish counterpart to the reign of Peter Leopold in Tuscany, that of Carlos III, had presided over an Enlightenment as fully Catholic as the earlier Italian one, personified in the encyclopedic Benedictine monk Benito Ger´onimo Fejy´oo y Montenegro. Like Muratori in Modena, Fejy´oo busied himself with everything – theology and philosophy of course, but also literature, history, geography, natural science, and mathematics – everywhere opposing scholasticism, ‘superstition’, and belief in false miracles. As in Italy, unlike in France, the pejorative filosofos was uttered almost synonymously with ‘Jansenists’, a term that might designate ministerial advocates of greater royal control over the Catholic Church like Pedro Rodr´ıguez de Campomanes, fiscale of the Council of Castile, as well as people of pronounced Augustinian theological tendencies like Francisco Saverio Vasquez, general of the Augustinian Order. In and out of the royal ministry in the 1780s and 1790s, Gaspar Melchor de Jovellanos figures importantly in accounts of both the Spanish Enlightenment and Jansenism, reconciling categories thought to be incompatible in Cartesian France. It was with the applause of both ‘enlightened’ and Jansenist advisers that Carlos III undertook his characteristically ‘enlightened’ Catholic reforms – the shifting of resources from regular to secular clergy, requiring the royal permission or exequatur for the publication of papal pronouncements, drawing a tooth or two from the Spanish Inquisition – culminating with the expulsion of the Jesuits in 1767. Even that act enjoyed wide support from a monarchically appointed episcopate still immune from the Unigenitusengendered polarisation across the Pyrenees. As in Italy, however, the expulsion of the Jesuits saw the beginning of the end of consensus, as Augustinians quarrelled with Dominicans over 127

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The ancien r´egime and its critics the educational and confessional spoils, and the ubiquitous Abb´e Cl´ement journeyed to Spain in search of recruits. Although Cl´ement did not find very many bona fide ‘friends of the truth’ in 1768, he found some in high places: Antonio Tavira y Almazan, Carlos III’s court preacher; Maria Francisco de Sales de Portecarrero, Condesa de Montijo, who presided over an influential salon in Barcelona; as well as some influential ‘friends on the outside’, like Manuel de Roda y Arrieta, minister of grace and justice. But the trip served to establish a system of correspondence and a web of connections which, replenished by the fallout from the Augustinian–Dominican conflict, grew to the proportions of a Jansenist party by 1780 (Appolis 1966). As in Italy, Spanish Jansenists looked to the crown to enhance the authority of bishops and priests vis-`a-vis the papacy and regulars, to put pressure on the Inquisition to allow the publication of ‘good’ books, and to sponsor curricular reform in the universities. To a degree, the government of Carlos IV obliged, appointing sympathetic inquisitors, allowing Jansenist professors to use the work of Tamburini in theology and van Espen and Johann von Hontheim (Febronius) in canon law, and – when they became available – the acts of the Synod of Pistoia and the text of the Civil Constitution of the Clergy as cases in point. Jansenist influence under Carlos IV reached its high-water mark in 1797–9 when Jovellanos occupied the ministry of grace and justice and, with Mariano Luis de Urquijo, promulgated the decree allowing bishops to grant matrimonial dispensations. That act, however, was to be Jansenism’s last legislative achievement in Spain. For Jansenist reformers had of course produced a proto-conservative reaction by Dominicans, Franciscans, some bishops, and noble Grandes de Espa˜ne, setting off a contest for the soul of the monarchy and the ultimate ‘duel’, in Jean Sarrailh’s words, ‘between the partisans of Jansenism and those of Ignatius Loyola’ (Sarrailh 1951, p. 19). On this growing division the French Revolution – and Counter-Revolution – exerted their powerfully polarising forces, providing conservatives with lessons in the dangers of a disunited absolute throne and papal altar. Among many exiled Spanish ex-Jesuits, who obtained permission to return to Spain after Napoleon’s invasion of the papal states had dislodged them from there, was Lorenzo Herv´as y Panduro, author of the Historia de la vida del hombre (1789–90), which argued that Filleau’s original Jansenist plot to dismantle the Catholic altar had culminated in an alliance with filosofos to topple the French throne (Herr 1958, pp. 411–13, 420). This version of history would eventually triumph under Fernando VII with the publication of a Spanish translation of the ex-Jesuit Rocco Bonola’s La lega della teleogia moderna colla filosofia 128

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Piety and politics in the century of lights (1798), itself a prelude to the Capuchin Rafael de V´elez’s Apolog´ıa del altar y del trono (1818–25). It was this curialist reaction that won the day in the person of Caballero in 1800, resulting in the ‘disgrace’ and exile of numbers of Jansenist ministers and former ministers, including Jovellanos and Urquijo. Although by French standards Spanish Jansenists scarcely sustained persecution, they lost all influence with the monarchy. Some of the older ones including Urquijo himself later served King Joseph Bonaparte when Napoleon imposed his brother on the Spanish throne in 1807, while younger Jansenists like Joach´ın Lorenzo Villanueva were able to think their way to the principle of national sovereignty and some kind of republic, albeit a Catholic one, with the help of a mythical version of a Visigothic constitutional past not unlike Le Paige’s Frankish one. Enough Jansenists elbowed Jacobins in the revolutionary Cortes of 1808–10 and again in 1820–3 to amount to a case for a religious origin of liberal Spanish nationalism. In sharp contrast to Spain, no Jansenists apparently surfaced in 1794 among the sixty or so ‘Jacobin’ conspirators uncovered in Vienna in 1794. So seamless and relentless was the reaction to everything that smacked of the Enlightenment or reformed Catholicism in Austria after the death of Emperor Leopold II (formerly Peter Leopold of Tuscany) in 1792 that, except for the far-flung provinces of Lombardy and the Austrian Netherlands, Jansenists under Habsburg rule found no opportunity to evolve from neo-Gallican regalism to anything else. As it happens, Habsburg Italy and the Netherlands were where many of the Austrian Jansenists had originated, imported in the 1750s and 1760s by Empress Maria Theresa, daughter of a Protestant mother whose conversion to Catholicism had been facilitated by Jansenist books. It was not, however, for the purpose of converting Protestants – although she was concerned about that – but as part of an effort to modernise the whole Habsburg state in the wake of successive defeats by Protestant Prussia, that she used Jansenists in her administration. The first contingent came from Italy or from Austrians who had studied there: Giuseppi Bertieri, Pietro Maria Gazzaniga, but above all Simon Stock who discovered ‘true doctrine’ at, of all places, the Jesuit-run German College in Rome, and who took over the direction of theological education at the University of Vienna at the partial expense of the Jesuits. Quite moderate despite a common hostility to Jesuits and popular devotion, they remained under the influence of Muratori’s brand of Catholic Enlightenment and regolata divozione. More radical reinforcements from the Austrian Netherlands came later in the train of Gerhard van 129

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The ancien r´egime and its critics Swieten, personal physician to Maria Theresa, among them Jean de Terme, Stock’s successor at the University of Vienna, and Anton de Ha¨en, van Swieten’s successor as the empress’s physician and a native parishioner of the excommunicated Jansenist diocese of Utrecht. Unlike the Italian and Spanish cases, Austrian Jansenism can be blamed not on the Abb´e Cl´ement, who knew no German, but on his friend and correspondent Dupac de Bellegarde, ubiquitous spokesman for the diocese of Utrecht, who stopped off in Vienna on his way to Rome in 1774. A reformed theological and canonical education at Vienna in combination with a relaxed censorship under van Swieten’s direction eventually added to the stock of indigenous Jansenists: for example the abbot Stephan Rautenstrauch, one of the authors of the anti-papal Was ist der Papst? (What is the Pope?) published on the occasion of Pius VI’s visit to Vienna in 1781; and Marc-Anton Wittola, editor of a Jansenist periodical called the Wienerische Kirchenzeitung. This Austrian equivalent of the Nouvelles eccl´esiastiques, the translation and publication of Jansenist books, easy access to power by way of the empress’s physician and personal confessor, some sympathetic bishops, and control over theological education in Vienna and at seminaries in Br¨unn and Leibach – all these factors ‘forbid judging Austrian Jansenism as an ephemeral phenomenon’ in the estimate of Peter Hersche, at least at the height of its influence around 1780 (Hersche 1990, p. 256). Ephemeral or not, Austrian Jansenism would have little bearing on eighteenth-century political thought had it not served as a kind of Catholic theological justification for the awesome assault by Maria Theresa and her son and successor Joseph II on baroque piety and the Austrian Catholic Church’s ‘external’ presence. By the time the dust from ‘Josephism’ had settled, the emperor had used his secular political authority to subject all papal correspondence to imperial inspection, to sever relations between Austrian monastic orders and their ‘foreign’ generals in Rome, to abolish all contemplative monastic orders and reduce the monastic population by more than half, to redraw both parish and diocesan boundaries, to abolish all diocesan seminaries in favour of a few general seminaries, to declare war on all forms of Aberglaube or popular baroque devotion, and – last but not least – to banish the bull Unigenitus. This Josephist variant of neo-Gallicanism went further than any other similar ecclesiastical reforms except the Civil Constitution of the Clergy, which Austrian Jansenists for the most part applauded. To be sure, not all of the ideological underpinning for this programme of reform was specifically Jansenist. The Austria of Haydn and Mozart’s Masonic Die Zauberfl¨ote (The Magic Flute, 1791) did not remain immune 130

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Piety and politics in the century of lights to the influence of another Enlightenment in the latter half of the century. Nor was there anything specifically Jansenist about the vaguely ‘enlightened’ and cameralist political thought of publicists and professors like Heinrich Gottlieb von Justi, Karl Anton Martini, and Joseph von Sonnenfels, who tended to invoke natural law to justify the state’s meliorist intervention in all manner of matters including the church (see ch. 18); or even the work of Johann Nikolaus von Hontheim (alias Justinus Febronius), suffragan bishop of Trier, whose De statu ecclesiae (1763) transmitted a radical neo-Gallican mixture of conciliarism and regalism to the German Catholic world and became a favourite textbook (Bernard 1971). Yet here, as elsewhere in Tridentine Catholic Europe, the boundary between neo-Gallican or Jansenist and more enlightened forms of regalism was indistinct. Moreover, the whole Josephist programme would have produced a much earlier and even stronger reaction had it not borne a distinctly Catholic aspect, preached in the name of a purified and interiorised piety against what the emperor himself called a ‘ridiculous externalisation’ (abgeschmackteste Vera¨usserlichung) of religion, for the benefit of a useful and pristine parish clergy as opposed to a useless monastic one, and on the neoGallican grounds of the Christian prince’s rightful purview over the public and external aspects of even the most ‘spiritual’ of the church’s functions. Nonetheless ‘orthodox’ Catholicism eventually reacted and found its voice. In the Austrian Netherlands, where Jansenist priests and professors were outspoken in defence of Josephist reforms, the ex-Jesuit Franc¸oisXavier de Feller, editor of the conservative Journal historique et litt´eraire, in 1787 reprinted the Jesuit Louis Patouillet’s updating of Filleau’s original 1654 version of the Jansenist Bourgfontaine plot, explaining in his preface how this long conspiratorial fuse had now reached a Josephist phase (Sauvage 1787). In the non-Habsburg Catholic German lands, a number of ex-Jesuits collaborated on the publication of anti-Josephist tracts and treatises, among them the Mainz Religionsjournal and the Augsburg Kritik u¨ ber gewisser Kritiker. In Vienna itself, Cardinal-Archbishop Christoph Anton Migazzi fought a rearguard action in defence of a threatened throne and papal altar until a more public counter-offensive took shape after the death of Joseph II in the form of Leopold Hoffman’s periodical Wiener Zeitschrift, which proposed to prevent ‘every throne [from being] buried in its own debris’ by attacking ‘irreligion’ in all its manifestations (1792, pp. 2–6). The religion that Hoffman proposed to defend, however, seems to have been generically Christian, good for Catholicism but for Protestantism too, and thereby addressing Protestant Germany as well. 131

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The ancien r´egime and its critics 3

Pietism in Lutheran Germany

Corresponding to the Catholic Enlightenment in Tridentine Europe was an equally pious one in Lutheran Germany. If, by the end of the century, Lutheran Pietism discovered that it could not go the second mile with the German Aufkl¨arung of, say, Friedrich Nicolai and his periodical Allgemeine Deutsche Bibliothek (1765–1806) – and also rediscovered in that Aufkl¨arung the rationalism it had tried to leave behind in Lutheran orthodoxy – it had covered much common ground during the century’s first mile. When for example he and his collegium philobiblicum had come under orthodox attack in Leipzig in the late 1680s, August Hermann Franke, one of the fathers of the Pietist movement, had found an eloquent defender in Christian Thomasius, father of the German Enlightenment. Together they virtually founded the University of Halle. This originally Pietist university also found a place for Christian Wolff, the disciple of Leibniz, who saw his rationalistic theology as forwarding the purification of Christianity begun by Luther and continued by the Pietists. The Pietist emphasis on a pure life as opposed to pure belief (reine Lehre) found enlightened echoes in the Nathan der Weise (Nathan the Wise, 1779) of the Aufkl¨arer Gotthold Ephraim Lessing, who for his part found a positive if provisional place for Christianity in his dialectical Die Entziehung der Menschengeschlechtes (1780). Founder of the famous Moravian community called Heernhut, the Pietist Nicolaus Ludwig Graf von Zinzendorf distinguished between the innocent and common-sensical understanding (Verstand) and the dangerously and uselessly speculative reason (Vernunft) in a way that anticipates the critique of metaphysics and systematic theology in the philosophy of Immanuel Kant, himself the product of a Pietist upbringing and a professor at a heavily Pietist university (Herpel 1925, p. 16). Like Zinzendorf ’s and Pietism’s generally, Kant’s religion was decidedly an affair of practical rather than pure reason. Pietism and the German Enlightenment shared a hostility to scholastic Lutheran orthodoxy, a predilection for the practical and useful, a robust interest in philanthropy and education, and an espousal of religious toleration (see Lagny 2001; Melton 2001a). The Pietist movement heralded by the publication of Philipp Jakob Spener’s Pia desideria (Pious Desires, 1676) aspired to reform the Protestant Reformation, mainly from within the Lutheran and to a lesser degree Reformed churches. The kind of new reformation it had in mind was less doctrinal than moral, an attempt to act on Calvin’s ‘third’ or sanctifying use of the Mosaic Law as well as on Luther’s original insistence that 132

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Piety and politics in the century of lights the ‘freedom of the Christian man’ spontaneously yet necessarily expresses itself in some ‘good works’. Pietism therefore stood for the practice of Christian piety (praxis pietatis) as against intellectual assent to objective truth, a biblicism in preference to confessional orthodoxy, and a priesthood of all lay believers in contrast to that of the clerical few, but above all an inward, experiential, and personal appropriation of the Gospel as opposed to either doctrinal or sacramental formalism (Stoeffler 1965, 1973; Wallman 1990). Since Jansenism has served as the starting point for this survey, a brief comparison with Pietism serves to put the latter in sharper relief. Like Jansenism, Pietism insisted on evidence of ‘conversion’ and ‘regeneration’, or what Pietists called a Widergeburt, that found fulfilment in a life of charity, and dared not rest on the dubious laurels of any ‘justification by faith alone’. The difference between people’s condition before and after conversion, between the Pauline ‘old man’ and ‘new man’, struck Jansenists and Pietists alike as fundamental, making both groups hostile to the notion of some moral middle ground or adiaphora consisting in acts neither good nor bad in themselves. Pietist pastors, like Jansenist priests, frequently got themselves into trouble with the established church for denying communion to the still unconverted, for distinguishing too sharply between the regenerate and unregenerate. Although both movements mainly remained within their respective churches and tried to avoid the onus of schism, Pietists like Jansenists tended to separate into conventicles – what Spener called ecclesiolae in ecclesia – and to constitute themselves as churches within the church. Conventicular piety found some of its best exemplars in the laity in Pietism as in Jansenism, for Pietism too held out for a less rigidly hierarchical, more participatory ecclesiology, and sought to diminish the distance between clergy and laity. That laicism took the form of vernacular translations of the Bible and an emphasis on lay Bible study, as well as an interest in psalmody, hymnody, and a more accessible liturgy. A more practical pastoral theology dear to both movements stood in sharp contrast to a detested scholastic orthodoxy. So did the theology of St Augustine and other fathers of the early church, which both groups venerated as superior to that of the middle ages. Viewing their own times, too, as a period of defection or apostasy, both groups looked not only backwards but also forwards toward the millennium. Among Pietists, Spener, Joachim Lange, and especially Johann Albrecht Bengel in W¨urttemberg indulged an interest in eschatological exegesis and the future conversion of the Jews. Corresponding, then, to Jansenism’s t´emoignage de la v´erit´e, or minority ‘witness to 133

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The ancien r´egime and its critics truth’ in times of trouble and obscurity, was Pietism’s Zeugnisse der Wahrheit, which figures so prominently in Gottfried Arnold’s Unparteiische Kirchen-und Ketzerhistorie (1699–1700), published as the eighteenth century began (Roberts 1973, pp. 151–2). However close these doctrinal and devotional similarities, the two religious phenomena diverged in precisely those areas most pregnant with political possibilities. To be sure, Pietists, like Jansenists, frequently appealed to the individual conscience or Gewissen and later evolved into ‘patriots’, but in Pietism’s case neither of these translated into adversarial politics. Unlike eighteenth-century Jansenism, which persisted in arguing Augustinian grace against Unigenitus, Pietism’s quarrel with Lutheran ‘orthodoxy’ was not really doctrinal. While Pietists may have wanted less emphasis on doctrine, they did not call for a different doctrine. Their de-emphasis of reason in favour of the heart gave Pietism the political consistency of pudding. That absence of polemical edge extended even to the domain of ecclesiology where, despite Spener’s inaugural condemnation of caesaropapism and a marked impatience with rigid hierarchicalism, Pietism did not really call for structural reform. Nothing in Pietism corresponds to Richerism or conciliarism. In contrast, then, to Jansenism’s residual Cartesianism, Pietism more consistently eschewed reason in favour of emotion, making for an affective religious sensibility and a more sensual sense of the sacred. Taking its most extreme form in Zinzendorf ’s cult of Christ’s blood and wounds in the 1740s, that affective and emotional sensibility had more in common with the Jesuits’ devotion to the Sacred Heart – or, as Albert Ritschl argued in the nineteenth century, with elements in late medieval monastic piety – than with anything in Jansenism, and perhaps enabled Pietism to maintain a more reverential attitude towards secular and ecclesiastical weltliche Obrigkeiten (Ritschl 1880–6). Hand in hand, finally, with these baroque elements in Pietism went a chronic attraction to forms of mysticism and quietism, in particular to that of Jakob Boehme, to whose French counterparts – Madame Guyon and Franc¸ois F´enelon – Jansenists stood unalterably opposed (Angermann et al. 1972, pp. 27–95). Since Pietism escaped wholesale persecution, it is not clear whether it was its political theology or concrete circumstances that accounts for its reluctance to challenge the powers that be. In the ducal and Lutheran W¨urttemberg studied by Mary Fulbrook, where Pietists came closest to adversarial politics, they sustained sharp polemical fire from orthodox T¨ubingen theologians like Johann Wolfgang J¨ager, lost a few of their more radical pastors to disciplinary action, and in 1710 endured the forcible 134

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Piety and politics in the century of lights closing of a noisy nocturnal conventicle in Stuttgart and the imprisonment of some its devotees. Orthodox opposition, concentrated in the church’s governing Consistorium (Kirchenrat), stalled Pietist reforms such as the compulsory teaching of the catechism, the addition of adult confirmation to infant baptism, and the requirement of stricter penitential preparation for the eucharist. Yet W¨urttemberg’s Lutheran establishment adopted all these measures, culminating in the so-called Pietistenreskript of 1743 granting permission to hold extra-ecclesial conventicles everywhere in W¨urttemberg so long as pastors presided, thereby successfully absorbing the Pietist presence (Fulbrook 1983, pp. 76–80, 130–52). What worked in the Pietists’ favour is that, in pressing for these reforms, they could take on the church without engaging the state. For, unlike the Gallican Church in France and the Lutheran Church in some other parts of the Empire, the Lutheran Church in W¨urttemberg was not an adjunct of the princely court, its bishops being independently promoted and sitting with townsmen in the duchy’s representative estates or St¨ande. That unique arrangement meant that Pietists were able to make common cause with other churchmen in defence of constitutional and ecclesiastical ‘liberties’ against the periodical attempts by the lilliputian W¨urttemberg– M¨ompelgard dynasty to free themselves from all fiscal and legislative control by the St¨ande, and to imitate the absolutist trend of its larger neighbours elsewhere in the Empire and in France. As it happened, the first such attempt by Duke Eberhard Ludwig took place just as the strength of Pietism was peaking towards the beginning of the century. Apeing the example of Louis XIV, he unconstitutionally raised revenues, footed a standing army, and built a baroque court at Ludwigsburg replete with mistress, music, and French wigs. It was in the first of these constitutional confrontations between the St¨ande and the W¨urttemberg dukes that Swabian Pietists most distinguished themselves as a group – with the Oberrat Johann Jakob Sturm spending three years in prison and the court pastor Johann Reinhard Hedinger preaching courageous sermons against immorality in high places. A second confrontation in the 1730s, between Duke Karl Alexander and the St¨ande, saw Pietists less conspicuously in the field, even though this Catholic duke added religious insult to constitutional injury by trying to legalise public Catholic worship. In the third attempt at what was now denounced as ‘despotism’, Duke Karl Eugen empowered himself with his French ally’s subsidies during the Seven Years War but encountered the determined opposition of the wellknown Pietist imperial constitutional jurist Johann Jakob Moser, then a legal 135

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The ancien r´egime and its critics consultant to the St¨ande. This constitutional crisis did not conclude until the Seven Years War had run its course, Moser had spent five years in prison, and the St¨ande had more or less prevailed, with the help of both Austria and Prussia. Moser’s personal involvement in this confrontation and his loquacity after his release provide a rare glimpse of the political reflection of a Pietist under pressure, at the same time that Chancellor Maupeou’s absolutist assault against the constitutionalism of the French parlements was forcing Jansenists from a passive constitutionalism to a more active conciliar one. Passive to the point of inertia, Moser’s earlier Teutsches Staats-Recht (1737–53) had been a sprawling, formless museum of the German Empire’s surviving judicial artefacts. At once antiquarian and anti-historical, this compendium seems innocent of even the passive resistance and limited political purpose justified by Le Paige’s thesis of historical continuity between Merovingian national assemblies and eighteenth-century parlements in his simultaneously published Lettres historiques. But five years in the Hohentwiel Fortress followed by a conflict with the St¨ande’s Smaller Committee engendered more pamphlets and a Neues Teutsches Staats-Recht (1766–79) which displayed Moser’s confessional colours more boldly as well as supplying greater conceptual coherence, balancing description with prescription and condemning ‘despotism’ in the name of ‘patriotism’. Parallelling the transition in Jansenist political thought from judicial to conciliar constitutionalism was a clearer distinction in Moser’s thought between justice and legislation as well as an indictment of the St¨ande as being less than representative of W¨urttemberg’s citizenry. Yet Moser stopped short of according legislative sovereignty or even cosovereignty to the Estates; his ducal ‘master remained always a master’, and that was all there was to it (qu. Walker 1981, p. 270). Where the Jansenist Catholics Mey and Maultrot were simultaneously having recourse to the authority of such Protestant political theorists as Samuel Pufendorf and Emmerich Vattel to effect a powerful if unstable synthesis of historic ‘fundamental’ laws with natural law in opposition to Bourbon absolutism, the Pietist Protestant Moser continued to wash his hands of Pufendorf’s rationalism and to appeal, in good Pietist fashion, to raw ‘experience’ in explicit preference to ‘reason’ or Vernunft. While it was true, as Moser argued, that sycophantic physiocrats in France and Johann Adam von Ickstatt and his cousin Peter Josef in Bavaria were also appealing to ‘reason’ to justify the ‘despotic’ ways of rulers to subjects, it was also true that it would take more 136

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Piety and politics in the century of lights than an amorphous ‘experience’ to oppose absolutist reason of state (Krieger 1957). It may at least be possible, then, that Pietism’s experiential political theology stunted its prolongation as a contestatory political conscience. For, in contrast to Pietist political activity in the era of Duke Eberhard Ludwig, Moser spoke for few besides himself in the era of Duke Karl Eugen. Although such indubitable Pietists as Jakob Heinrich Dann agitated for Moser’s reinstatement after his release from prison in 1764, they do not seem to have added up to a Pietist party in the St¨ande. Moser not only acted alone but suffered alone, Pietists having long ceased to be persecuted for Pietism’s sake. So successfully had Pietists blended into W¨urttemberg’s ecclesiastical landscape since the Pietistenreskript of 1743 that they could leave it to the bishops and townsmen of the St¨ande to defend their interests. A very different political trajectory, more comparable to Jansenism’s or reformed Catholicism’s in Peter Leopold’s Tuscany or Joseph II’s Austria, is evident in eighteenth-century Brandenburg-Prussia, where Spener and Franke themselves finished their reformist careers and where, so far from being persecuted, Pietism became something like a state religion in alliance with the monarchy against both the Lutheran Church and the Prussian St¨ande (Gawthrop 1993). There, a confessionally Reformed or Calvinistic Hohenzollern dynasty ruling over a conglomeration of mainly Lutheran territories welcomed Calvinist Huguenot refugees from Louis XIV’s France at about the same time that it began to perceive in an irenic and tolerant Lutheran Pietism an antidote to its confessional isolation vis-`a-vis Lutheran orthodoxy. Since, in Prussia, the Lutheran Church fell under the control of the various St¨ande, and since the Hohenzollern dynasty was just then completing its drive towards absolutism at the expense of the local political power of those same noble-dominated estates, Pietists tended to do double duty as allies on that front also. Finally, Friedrich I and Friedrich Wilhelm I did not fail to see in Hermann August Franke’s fledgling but impressive educational, philanthropic, and economic enterprises in Halle the perfect means to maximise some human, material – even spiritual – resources in the service of their well-ordered paternal and military state. As Franke put it to Friedrich Wilhelm I in 1711, Pietism promised to produce ‘honest subjects and faithful servants in all estates and professions’ (Deppermann 1961, p. 166). What Pietism obtained in return for this help, and for the halo with which it surrounded the transformation of the Prussian electorship into a monarchy, was protection from Lutheran orthodox hostility, which was 137

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The ancien r´egime and its critics nowhere more intense as the eighteenth century began. That protection translated into the founding of the University of Halle, initially a Pietist preserve, as well as privileges for Franke’s other philanthropic and educational enterprises. A little later the same king imposed Pietist professors on the University of K¨onigsberg, transforming it into another Pietist redoubt. This growing symbiosis between Pietism and Preussentum culminated in the 1720s and 1730s when the Prussian state began to impose Pietist graduates from Halle and K¨onigsberg on all Lutheran parishes, even ones formally in the patronage of Junker nobles, as the Hohenzollerns consolidated their control over the ecclesiastical as well as other public aspects of Prussian life. Whatever reservations Spener may have had about the caesaropapism of Lutheran states when he published his Pia desideria in 1676 had clearly disappeared by the time he died in Berlin in 1705 (Spener 1676, p. 17). Pietist political thought in eighteenth-century Prussia therefore took the form of a cameralist rationale for state interventionism to maximize material welfare which, in Marc Raeff’s words, ‘would redound to the benefit of the state and the ruler’s power and provide for the proper framework for a Christian way of life’ (Raeff 1975, p. 1225). Pietist cameralism, at which even Moser tried his hand before it got burnt by Karl Eugen in W¨urttemberg, is thus comparable to Jansenist cameralism in Catholic Austria or Spain, except that the Lutheran Church in Prussia had even less autonomy than the Catholic Church in those realms. The price paid by Pietism for its dependence on and contribution to Prussian absolutism became apparent during the reign of Frederick II ‘The Great’, who not only spoke French in preference to German and brought Voltaire to Potsdam, but favoured ‘enlightened’ pastors for Lutheran parishes in preference to Pietist and orthodox alike. Pietist reaction to this turn of events hence tended to blend into its reaction to the French Revolution, and therefore coalesced with other conservative voices. By the 1790s the Pietist challenge to Lutheran orthodoxy lay too far in the past for German conservatism to have taken an explicitly anti-Pietist cast. When for example Ludwig Adolf Christian von Grolman and Johann August Stark’s conservative periodical Eud¨amonia (1795–8) directed its venom against ‘every guttersnipe [who] feels free to throw dung at every monarch and every altar’, it had enlightened illuminati mainly in mind, although Stark threw in Protestant dissenters and Catholic Jansenists for good measure in his own version of the basically aufkl¨arisch conspiracy against thrones and altars culminating of course in the French Revolution (Epstein 1966, pp. 511, 514, 516, 540). 138

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Piety and politics in the century of lights In the end, Pietism’s most distinctive political legacy was its contribution to German nationalism by way of late eighteenth-century ‘patriotism’. As argued by Koppel Pinson in 1934 and more recently by Gerhard Kaiser, that connection between Pietism and the literary stirrings of German nationalism seems most evident in the ‘patriotism’ of Moser’s son Friedrich Karl and in the Pietist backgrounds of many of the major figures of the German Sturm und Drang (Storm and Stress) movement, like Goethe, Hamann, Novalis, and Friedrich Schleiermacher (Kaiser 1961; Pinson 1968). But it also seems evident in the revolt against French in favour of German, the rejection of ‘reason’ in preference to ardent feeling and emotion, in the rehabilitation of the common people or Volk as the true carriers of piety in advance of national character, and Zinzendorf’s celebration of confessional diversity over national diversity. Indeed, Zinzendorf’s use of the term nationalismus while in London in 1746 to designate something possessed by the English, French, and Spanish but not by the Germans must be one of the first such instances in any European language (Zinzendorf 1962, vi, p. 111). But unlike the Jansenist ‘patriotism’ of the early 1770s that was just as anti-‘despotic’ as it was anti-ultramontane, German ‘patriotism’ remained for the most part without that constitutional element, except perhaps for the cases of Johann Jakob Moser and his son Karl Friedrich. That German nationalism eventually took an authoritarian rather than constitutional turn may say something about the nature of the religious bridge between the German Old Regime and political modernity. 4

European Calvinism and English Dissent

If eighteenth-century Jansenists were more adversarial than Pietists at least in part because their theology and ecclesiology were a little like Calvinism’s, what of Calvinists themselves? Did Calvinists live up to their reputation for political indocility so deservedly acquired in the sixteenth century? This survey will conclude with a brief glance at the European Reformed community. It goes without saying that where Calvinism had triumphed and become an ‘establishment’, as in Geneva and the northern Netherlands, it acquired the same vested interest in its own perpetuation as any such establishment and hence every reason to minimise its potential for self-subversion. Such subversion depended on heterodox challenges from within those establishments. But the Pietist form that such challenges typically took in the eighteenth century packed no more political punch than they did in Lutheran 139

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The ancien r´egime and its critics establishments. At the other extreme were areas like southern France and the Upper Palatinate where Calvinism had been so thoroughly uprooted that little force for resistance remained. It is true, however, that the Huguenot diaspora in England and the Netherlands made no small contribution to antiabsolutist political thought in the eighteenth century, beginning with Pierre Jurieu’s Lettres pastorales (1686–8) which tried to encourage the indigenous Huguenot community after the Revocation of the Edict of Nantes, and ending with French-language periodicals that provided political news for the whole literate French community on the eve of the French Revolution (Popkin 1989). When, meanwhile, Jansenists like Mey and Maultrot turned to the works of Grotius, Gerard De Noodt, and Pufendorf with such devastating effect in the 1770s, they read them in French translations by Jean Barbeyrac, another refugee from Louis XIV’s France toute catholique. It was in the pulpits of revolutionary New England that Calvinism made its greatest and still characteristic impact on political thought and action, but New England was not Europe. European enough, however, was England itself, where the work of James Bradley among others has focused renewed attention on the role of Nonconformity or Calvinist ‘Old Dissent’ in the politics of pro-Americanism and the transformation of Commonwealthman ideology into the political radicalism of the late eighteenth century (Bradley 1990, 2001). While the radicalism of Richard Price, Joseph Priestley, and the London Association may be too ‘enlightened’ to qualify as Calvinist, Bradley’s examples of provincial pastors in some open parliamentary boroughs – Caleb Evans in Bristol, James Murray in Newcastle, David Rees in Norwich – would seem to be Calvinist enough. Their congregationalist separatism made these Dissenters subject to the Test and Corporation Acts which, though hardly tantamount to religious persecution, excluded them from public office and sustained a minority mentality. Led by such ministers or prominent laymen, Dissenters both voted and petitioned with ideological consistency for Whig candidates until the latter 1760s, then in opposition to the North administration’s American policy in the 1770s and 1780s. Throughout this period these pastors preached and published in defence of the American colonial rebellion and against the policies of George III and the North administration, sometimes treasonably so. Like Jansenist pamphleteers on behalf of the contemporaneous anti-Maupeou ‘patriot’ movement in France, they invoked an ‘ancient constitution’ and true ‘patriotism’ against despotic degeneration, and urged rejection in the name of God and the constitution of ‘passive obedience’ to tyranny. Behind these audacities there stood a conception of God so transcendent that it tended to demote all tem140

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Piety and politics in the century of lights poral hierarchies, ending in a kind of apologia for the temporal sovereignty of the Christian vox populi as the best echo of the vox Dei. Even more important, in Bradley’s estimation, was the congregationalist polity that, more radically than the Jansenist one, effectively resisted the Anglican state’s ‘domination’, while also acting as a model for temporal governance. Although, finally, these ministers argued mainly from the scriptures and in particular from the Old Testament – one Solomon being worth ‘a thousand Rousseaus’, in James Murray’s opinion – they saw no inconsistency in also appealing to ‘reason’ and ‘natural rights’ as defined by the publicists of the Commonwealthman tradition, John Locke not least among them. As it happened, Methodist ‘New Dissenters’ led by John Wesley also learned from Locke. The Wesleyan Locke was not, however, the Locke of ‘reason’ or the Two Treatises of Government, but rather the apologist of sensate ‘experience’ and the Essay concerning Human Understanding. Faith for Wesley, as for Pietists, was not an understanding but rather experiential; the final validation of one’s regeneration was not ‘reason’ but ‘feeling’. So strong was Wesley’s distrust of discursive reason and so consistent was his empiricism that he followed Condillac in eliminating pure introspection as a source of ideas and experimented throughout his career with the hypothesis of a ‘religious sense’ comparable within its domain to Francis Hutcheson’s moral sense (Dreyer 1983, pp. 12–30). Like Pietists, too, his was a ‘reformation, not of opinions (feathers, trifles, not worth the naming), but of men’s tempers and lives’. Nor was his quarrel with the Anglican Church doctrinal or even ecclesiological. On the contrary, Wesley’s most chronic doctrinal quarrel was his ‘Arminian’ defence of the human will against ‘speculative Antinomianism and barefaced Calvinism’, against preachers like Caleb Evans. But no more than in the case of Pietists or Jesuits did that espousal of free will translate into a free politics. Throughout the 1760s and 1770s Wesley and his cohorts resolutely defended the principles of the divine right of kings and the obligation of ‘passive obedience’, and parliament’s policies of excluding John Wilkes and of taxing the American colonists, blaming Calvinist Dissenters in particular for both colonial rebellion and domestic unrest (Semmel 1973, pp. 56–80). But no-one could preach the divine origin of political power and the duty of passive obedience as convincingly as Anglican divines, which they indeed did, apparently with renewed vigour. Tory authoritarianism was resurgent in reaction to the Wilkesite agitation and the American and French Revolutions, and comparable to the rise of ultramontane political theory on the Continent (Clark 1985, pp. 216–57). So lofty had the High Anglican view 141

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The ancien r´egime and its critics of the Hanoverian monarchy become that in 1776 it was possible anonymously to republish an extract from a late seventeenth-century Jacobite political treatise as a tract for new times, as if what had been said on behalf of the ‘indefeasible right’ of the deposed Stuart James II was equally applicable to the Hanoverian usurper George III. Like Lefranc de Pompignan arguing in 1769 against Rousseau and Jansenists, latter-day Laudians like William Jones, John Whitacker, and George Horne argued against Locke and the Dissenters that, since the right over one’s life or anyone else’s could not be derived from any putative state of nature, political authority had to have come from God and not the people. Although some of these theorists, like Samuel Horsley, left room for different forms of government, including even a ‘balanced’ constitution, the weight of the argument clearly favoured monarchy, and entailed a close union between crown and mitre. It is altogether plausible that this context of Wesleyan and High Anglican political theology is important in the genesis of Edmund Burke’s conservatism. When he wrote (apparently against French revolutionary rationalism) that ‘we know, and what is better we feel inwardly that religion is the basis of civil society’, Burke took Wesley’s side against Dissenting ‘reason’ (my emphasis). When he maintained (apparently against the Civil Constitution of the Clergy) that for Englishmen the church was ‘the foundation of . . . the constitution, with which, and with every part of which, it holds an indissoluble union’, he also took Anglicanism’s side against voluntaristic congregationalism (Burke 2001, pp. 254, 264). England, it has been argued, avoided anything like a French Revolution because Methodism enrolled enough of the English working class into its ranks to have taken the edge off class consciousness and political radicalism (Thompson 1963). Be that argument as it may, the absence of an antiAnglican revolution and the tremendous role reserved for Methodism and other forms of Nonconformity in the nineteenth century has made it easy to acknowledge the place of religion in the formation – or reformation – of political parties and political modernity in England. Traditionally, such a case has been harder to make for Continental, especially Catholic, Europe, where the ‘Jansenist’ or reformed Catholic alternative fell victim to the clash between an anti-Catholic Revolution and the Catholic reaction. However, that what was variously called Jansenism, Gallicanism, regalism, and Febronianism, might have made as large a contribution to liberal nationalism as d´evot or zelanti Catholicism did to conservative nationalism is one of the principal hypotheses suggested by this survey. 142

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Piety and politics in the century of lights The other conclusion, perforce more tentative, has to do with religious sensibility as a factor in the process of politicisation. It would seem that the circumstance of real or perceived persecution, while sometimes important in drawing out the political implications of given religious sensibilities, was not crucial in determining their basic direction. On the one hand, no religious group was as persecuted as were the Jesuits after 1765 or so; yet that persecution served only to accentuate the society’s penchant in favour of ecclesiastical and political hierarchies, even if in defending them some ex-Jesuits defined themselves against some hierarchs. On the other hand, it is hard to imagine how any amount of persecution might have made German Pietists as politically pugnacious as French Jansenists, regardless of the many points of religious contact between them. Where they diverged in their respective emphases on affective emotion as opposed to discursive reason seems everywhere to have been a pivotal point in the direction of politicisation. For not the least of the paradoxes of eighteenth-century piety is that it was the ensemble of a God accessible to the human will via affective experience that tended towards conservatism, while it was the opposite ensemble, a transcendent God known to be such by discursive reason but unamenable to affective will, that produced the most wilful politics and ran in a liberal direction.

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II The new light of reason

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5 The comparative study of regimes and societies m e lv i n ri c h te r

1

The ambiguities and resources of comparative method

Comparison and contrast were used by eighteenth-century European thinkers to characterise their nations and continent, as well as their historical epoch. This was done by distinguishing the arrangements of each nation from its neighbours’, by contrasting European regimes, societies, economies, cultures, and religions with those elsewhere in the world, and by juxtaposing their own time with periods preceding it. This comparative mode of analysis was deployed in conflicts between the champions and enemies of Enlightenment, in the sharp disagreements separating defenders of absolutism from those opposed to it, and in disputes about established churches and their theologies. Although political theory was often conducted through comparison and contrast between European regimes, the application of the method to the rest of the world was no less significant. Some modern interpreters hold that European thinkers assumed their continent’s superiority, and thus that ‘Enlightenment’ went hand in hand with imperial subjugation of non-Europeans. Others, on the contrary, say that xenophilia, e´trangisme, and the conviction of European inferiority, decline, and corruption prevailed among intellectuals (Baudet 1988, pp. 50–1). This chapter addresses some of the numerous and complex ways in which European writers used comparative discourse. It examines the extent to which key concepts in this discourse were shaped by theorists’ preferences and their positions on domestic controversies within their respective nations, as well as on issues during conflicts among European states within their own continent and in overseas competition for colonies. It asks whether there was any consensus about the superiority of Europeans over the rest of world, or about the legitimacy of European conquests, colonisation, and commerce, including the slave trade. Comparison turned out to be a profoundly ambiguous and controversial operation, holding in suspension a number of disparate intentions and 147

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The new light of reason methods. When writers such as Voltaire, Gibbon, or Robertson contrasted eighteenth-century Europe with its medieval and sectarian past, they tended to be cautiously optimistic about its future. They saw Europe as a prospering commercial society, as having recovered from religious civil wars either by the triumph of toleration or by the imposition of peace by absolute monarchy, as having moderated international conflict by the invention of the balance of power, and as participating in an unprecedented advance of science, technology, and knowledge. Although some held this benign Europe already to be one progressive republic, others did not. Rousseau warned the Poles against losing their national identity by adopting the uniform way of life he attributed to commercial Europe. Herder emphasised the differences among European nations and ascribed their merits to their uniqueness. Comparison was condemned by Herder, who argued that its real function was to suppress the rich diversity of human cultures and languages within and beyond Europe. He also ridiculed as reductionist the four stages theory of the Scottish Enlightenment, as well as the tables, statistics, and systems theory of the G¨ottingen ‘universal’ or ‘world historians’, Johann Christoph Gatterer and August Ludwig von Schl¨ozer. Adam Ferguson, and sometimes Adam Smith, stressed the moral costs inflicted by the advent of commercial society. Anquetil-Duperron asked why European ways of thought and worship should be thought superior to those of the great Asian civilisations. Attempts to seek ‘parallels’ between societies or periods were denounced by J. R. Forster; explanations derived from differences of national character by Thomas Paine (Paine 1945, ii, p. 249). Arguments about the worth of alternatives to existing arrangements were habitually presented by comparing or contrasting them with non-European regimes called Oriental, or with ‘savage’ or ‘barbarian’ societies in the New World, the South Pacific, or with other historical periods where preferred or condemned models were said to have flourished. Thus contestation could extend to questioning the value of comparative analysis or the quality of the empirical evidence on which it was based. The range of variation in subjects, categories of analysis, and comparative methods was great. Yet many writers built their theories on the distinction between moral and physical causes: Montesquieu and Hume stressed the first; Diderot the second; Herder, their interaction. Generalisations were increasingly tested by their applicability to all known peoples, continents, and practices. In his Essai sur les moeurs et sur l’esprit des nations (Essay on the Mores and Spirit of Nations, 1756), Voltaire derided Bossuet for treating the histories of only six peoples. By the end of the century, the belief that 148

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The comparative study of regimes and societies the entire world comprised a single system was shared not only by Smith and Robertson, but also by Gatterer and Schl¨ozer. From which sources did literate Europeans derive their information? How did they order it when they compared societies and regimes? Ever since the fifteenth century, the reading public had had a huge appetite for accounts of societies other than their own, written by commercial travellers, explorers, diplomats, missionaries, and colonial administrators. Governments, particularly those holding or seeking colonies, were no less interested in acquiring crucial details about their inhabitants’ mode of life. Beginning with the sixteenth-century collections by Hakluyt and Purchas, such sources were often translated and published. Almost all the European authors discussed here prided themselves on their knowledge of travel literature since the first age of exploration. Many tried to acquire and assimilate the discoveries of their own time embodied in books by Bougainville, Cook, and the Forsters, father and son. Yet to collect all such works was difficult even for those who could afford them. Travel books were mostly read in the great eighteenth-century collections vigorously promoted by their publishers, and often pirated at home and abroad. Principal among such works in English were A Collection of Voyages and Travels (1704), published by Locke’s booksellers Awnsham and John Churchill, another travel library edited by John Harris (1705), Thomas Astley’s New General Collection of Voyages and Travels (1745–7), and The Universal History of Smollett and Campbell (1765). Pre-eminent in French was the Abb´e Pr´evost’s L’Histoire g´en´erale des voyages (20 vols., Paris, 1746–89), although The Universal History was also translated, as had been an earlier work allegedly by Locke, The History of Navigation (1704). Although Pr´evost began by translating the first seven volumes of Astley, he then turned to a general history of discoveries and colonisation up to his own time, preceded by a general survey of his sources. His history resembles the Encyclop´edie in its topics. Pr´evost’s skills as novelist and journalist enabled him to write an engaging narrative capable of capturing a general audience, as well as providing otherwise unavailable sources for more demanding readers. Raynal was to enjoy a similar success.1 Virtually all sustained comparisons played large parts in ostensibly unrelated discourses prescribing political regimes and determinate forms of religious, social, and economic organisation for European states. Yet the vocabularies of comparison did not alter as much as might have been expected. 1 Convenient accounts of travel literature are given in Marshall and Williams 1982, ch. 2, and Duchet 1995, ch. 2.

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The new light of reason Some concepts (‘society’ or ‘civil society’, ‘the savage’ and ‘savagery’, ‘the barbarian’ and ‘barbarism’), took on new senses, acquired novel paired opposites, or were assigned positions in a patterned sequence of stages. Yet instead of coining neologisms to express conceptual novelties, theorists maintained a surprising continuity in their terms of comparison. These, however, authors felt free to redefine. Otherwise they assumed that their readers, without explicit discussion, would understand usages peculiar to an author. Seldom did theorists refer to either the discrepant senses of the same terms by their contemporaries, or to the understandings of earlier practitioners of comparison. One egregious example is Voltaire, who, despite citing Locke on the need to define the terms of discourse, never himself explicated the key concepts in the title of his Essai sur les moeurs et l’esprit des nations. Other treatments of comparative analysis were more critical. The article ‘Comparison’ in the Encyclop´edie suggested that making comparisons could produce errors, leading to the identification of relationships that did not exist. Typical in the eighteenth century was the attempt to compare modern ‘primitives’ with the inhabitants of the ancient world known from classical sources. In his Moeurs des sauvages am´ericains compar´ees aux moeurs des premiers temps (Customs of the American Indians Compared with the Customs of Primitive Times, 1724), the Jesuit missionary Father Lafitau sought to demonstrate similarities between the religious beliefs of indigenous Canadians and those reported as prevalent in European classical antiquity. Nonetheless, the article in the Encyclop´edie had concluded that it was to the credit of humans that they engaged in comparison more than any other species. A Humean version of this conclusion is found in the entry for ‘Comparison’ in the first edition of the Encyclopedia Britannica (1771): Comparison, in a general sense, [is] the consideration of the relation between two persons or things, when opposed and set against each other, by which we judge of their agreement or difference . . . A person in prosperity becomes more sensible of his happiness by comparing his condition with that of a person in want of bread.

The eighteenth-century German work most nearly comparable to the Encyclop´edie was edited by Johann Zedler (1733–64). Despite the many differences separating the greatest encyclopedic achievements of the century, their articles on terms of comparison were remarkably similar. Both referred to the original Latin terms from which these concepts were developed. The Zedler entry on Sitten begins by identifying the concept with mores, and hence moeurs; while Gewohnheit, the Latin equivalent for which was consuetudo, is synonymous with coutume. The enduring but unreflective effects of 150

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The comparative study of regimes and societies repetition are subsumed under the Aristotelian category of habitus. In the long discussion of Sitten, there are differentiations of custom from national character, the components of which are sketched and the causes of its formation explained. As sources for the concept, Zedler cites John Barclay’s Icon animorum (1614) in the original Latin, as well as Bodin’s Methodus (1565) and De Republica (1576). For the concept of character, Theophrastus is invoked as a source, as well as La Bruy`ere. Careful attention is given to the question of whether different regime types determine national character, or vice versa. These examples illustrate that the eighteenth-century notion of distinctive national characters was a comparative concept designed to point up each people’s singularity and difference from all others. Early in the century, the study of national character was put on the agenda of French historians in an influential manual by Lenglet-Dufresnoy. Later Montesquieu, Voltaire, Diderot, Herder, and Hume all made use of this integrating concept. But each did so in his own way and for his own purposes. As with other terms of comparative study, the ubiquity of ‘national character’ as a concept more often concealed differences than pointed to consensus. Some argued that political regimes determined the institutions and the ‘manners’, or moeurs, of a people. Others thought that moeurs overrode the effective capacity of regimes to legislate. Religion was frequently denoted the ultimate determinant of character. And there was disagreement about whether national character represented an organic singularity, or if it should be understood as the unstable result of internal contradictions. 2

Montesquieu

In the second half of the eighteenth century, political, social, and legal theory from Russia to America centred on the categories devised by Montesquieu for comparative study. Political theory was dominated by the regime types introduced in books ii–viii of his Esprit des lois (The Spirit of the Laws, 1748): r´epublique, monarchie, despotisme. What would today be called social theory centred on his novel classifications of peoples by their modes of subsistence in book xviii: sauvages, or chasseurs; barbares, or pasteurs; nations polic´ees (savages or hunters; barbarians or shepherds; civilised nations), which were either agricultural or commercial. Legal theorists discussed Montesquieu’s classification of systems in terms of their reliance upon lois, moeurs, mani`eres (laws, mores, manners), as well as by the presence or absence of institutionalised constitutional limits upon government. Finally, as a synthesis of all these subjects, in book xix, Montesquieu provided an inventory of the 151

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The new light of reason range and foci of the overarching national character or general spirit (esprit g´en´eral), which he claimed unified every people’s life and distinguished it from all others. Almost every writer on politics, society, and law felt compelled to defend or attack Montesquieu’s categories.2 His numerous hostile critics included theorists as diverse as Voltaire, Linguet, Anquetil-Duperron, Herder, and Justi. How did Montesquieu reconceptualise the vocabulary of comparison he inherited? Comparison, Montesquieu held, was indispensable for the analysis of human collectivities. People understood political and social phenomena only when they could cite some alternative arrangement in place elsewhere. Montesquieu’s use of comparison was often intended to prove that deplorable practices and laws might be replaced by superior measures. He insisted that the comparative method could be put on a rigorous basis only through classifying nations and governments by ideal types such as he constructed. At his most ambitious – he was the first to include systematically within political theory an investigation of the ‘laws, customs, and varied usages of all peoples’ – he claimed to have discovered certain general laws applicable to all governments, societies, and legal systems. By such laws, every individual datum could be explained; every law linked to another, or derived from a more general law (SL, i). In practice, he often subverted such purported regularities by citing exceptions to them. Montesquieu’s interests were almost equally divided between, on the one hand, establishing resemblances among polities and societies widely separated in time and space; and, on the other, understanding what distinguishes one from the other. He has been praised for his achievements in both types of analysis. Durkheim saw in him the authentic precursor of sociology, understood as establishing the uniformities shared by all societies. Yet Montesquieu was also fascinated by difference, by complexity, by organic and unplanned historical development. On occasion he discovered the hidden wisdom of custom, and could refer to the generally beneficent, if unintended, consequences of religious faith. Voltaire, by contrast, had scant use for either custom or organised religion. Hume, while sharing Voltaire’s distaste for churches and sects, did not share his enthusiasm for applying reason as the standard by which to judge existing arrangements. It was to be Hume who argued that only custom makes judgement possible, and that habit is the foundation of political stability and civilised society. 2 The study of politics, society, and law were not as yet set off from one another. This was particularly true of comparative law. For the great significance of legal studies for what are now considered the social sciences see Kelley 1990.

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The comparative study of regimes and societies Montesquieu assumed that comparison presupposes a ‘distancing’ on the part of the analyst. Only in this way can the capacity be acquired to treat the features of one’s own society as problematic, rather than natural. In his Lettres persanes (Persian Letters, 1721) he had made relativism into a new technique for comparison. This was his first book, written in the form of letters by two Persians who had never before left their country. Although not the first to use the device of presenting his own society as it would appear to outside observers, Montesquieu here displayed a remarkable capacity to treat his own government, society, and religion as phenomena to be investigated objectively. What before, in the sixteenth-century writer Montaigne, had been a philosophical and religious scepticism, now became a means of analysing the newly revealed range of diversity in governments and societies. Combining wit, malice, and fable, the Persian Letters is among the few works of genuine philosophical consequence to treat serious matters irreverently. Hence its enormous popularity. Montesquieu presented a remarkably fresh and detached view of France, in which almost every aspect of its life was relativised and made problematic and amusing. Such a method might serve as a solvent of traditional values and modes of thought. This applied especially to the political agenda of the Persian Letters, its attack on the absolute monarchy constructed by Louis XIV, later reconceptualised in The Spirit of the Laws as despotism. In the earlier work, Montesquieu treated this subject indirectly through the sustained sequence of letters between Usbek, the more philosophical of the two Persians visiting Paris, and his seraglio (as Montesquieu calls the harem) of wives, and the eunuchs who guarded them. In devoting so large a part of the book to depicting the inner life of the seraglio, Montesquieu created an image of despotism altogether novel in its detail, in its compelling account of the human passions that sustain it, and above all in its representation as a system of power. In the seraglio letters, there are three parties to a relationship that is despotic: Usbek, the master of the seraglio, who is absent in Paris; his eunuchs, to whom he has delegated power; and his wives. This is a system of power that involves paradoxes and contradictions. Its ostensible purpose is to establish the conditions regarded by its master as requisite for maintaining the purity, obedience, and modesty proper to marriage, as practised by the Persians. Of course, there immediately arises the question of whether the seraglio is compatible with human nature and the law of nature. Relativism cuts two ways, and if customs and institutions are to be regarded as merely the products of a society’s physical environment and historical experience, 153

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The new light of reason then what is regarded as natural by Westerners and Christians is as arbitrary as any Oriental practice. Usbek believes the seraglio is connected to virtue and duty; he sees its maintenance as closely connected to that of authority and dependence. Usbek is a man who wishes to be loved by his wives as a husband rather than feared as a master. Yet he, and they, are part of a system which by its logic links love to fear, the distinguishing characteristic of despotic rule. Despotism cannot be enlightened; its principle is fear, and this cannot be moderated or checked, despite Usbek’s efforts. The eunuchs reveal the implacable logic of despotic rule. But Montesquieu does not exaggerate the omnipotence or permanence of this system. Even with it, some sort of consent is necessary, as Roxana points out in her final letter. Absolute rule is not only more subject to corruption than any other, but also when sedition occurs, it produces more violent effects than in other systems. Here Montesquieu’s treatment is largely psychological; later it will be political and legal. In The Spirit of the Laws he classified governments in terms of three types, each of which is characterised by its nature and principle. By the ‘nature’ of a government he meant the structure, the framework within which the person or group holding power must function; by ‘principle’, that passion which must animate those involved in a form of government if it is to operate at its strongest and best, or survive at all (SL, iii.1). When classified by their nature, governments fall into three categories. A republic is that form in which the people as a whole (democracy), or certain families (aristocracy), hold sovereign power. A monarchy is that in which a prince rules according to established laws that create intermediate groups as channels through which royal power flows. Montesquieu’s examples of such channels include an aristocracy administering local justice, parlements with political functions, a clergy with recognised rights, and cities with historical privileges. Despotism is the unlimited rule of a single person, directed only by his will and caprice. The principles of these governments differ: virtue is the principle of republics, honour of monarchies, and fear of despotism. Montesquieu subdivided republics into democracies and aristocracies. His image of the first was taken from classical Greece and Rome. When he assigned virtue to them as their distinctive principle, he meant those political qualities requisite to their maintenance: in the case of democracies, love of country (patrie), belief in equality, and the frugality and asceticism which lead men to sacrifice their personal pleasures to the general interest. His model for aristocracy was drawn from early modern Italian city-states ruled collegially, such as Venice. Hence he classified aristocracies, along with democracies, as 154

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The comparative study of regimes and societies republics in his special sense. Although such aristocratic republics required virtue on the part of their governing classes, the form it took in them was that of the moderation needed to mitigate their characteristic weaknesses. Montesquieu thought that monarchy, as he defined it stipulatively, was the modern regime best suited to ruling free societies intermediate in scale and commercial in their economy. The principle of monarchy he defined as honour, based on esprit de corps, the sense of belonging to a social formation which demands and receives privileges. When such privileges are granted voluntarily by the monarch, the nobility of a monarchy is recognised as a semi-autonomous, intermediate group between the king and people. Although its claims are selfish and exclusive, the nobility helps maintain liberty through resistance to any attempts by the crown to exceed its constitutional prerogatives. Montesquieu summed up his conviction that such a nobility is essential to a monarchy (as opposed to a despotism) in the phrase: ‘Without a monarch, no nobility; without a nobility, no monarchy. For then there is only a despot’ (SL, ii.4). But he also insisted that a monarchy must recognise other intermediate groups. Montesquieu made the concept of despotism into a regime type which was so widely used in a pejorative sense during the second half of the eighteenth century that it helped undermine the legitimacy of the French monarchy. Despotism replaced tyranny as the term for a corrupted monarchy. The makers of the French Revolution described themselves as overthrowing a despotic system. Absolute European governments had often before been called tyrannies, but the implication remained that bad rulers could be replaced. In Montesquieu’s conceptualisation, despotism was systemic, and alien to France, a system that might be extirpated, but never reformed. Like the other two types of government, despotism was driven by an operative passion, in this case fear. Yet Montesquieu did not expect to find any of his types empirically embodied in all their aspects. Thus, although the king of Persia might be able to force a son to kill his father, the same king could not force his subjects to drink wine. Montesquieu avoided making categorical statements about religion; instead he carefully distinguished the effects of religion upon each type of regime. Under monarchy, there must be a constituted body that includes the clergy. This is as valuable to monarchy as it is pernicious in a republic. Since no other power can affect a despot, religion alone on occasion can moderate this regime (SL, ii.4). Such an approach to the political effects of religion was in conspicuous contrast to Voltaire and Hume, neither of whom could see anything positive about 155

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The new light of reason organised religion. They perceived it as producing only superstition, fanaticism, and irrational enthusiasm. Voltaire was obsessed with the power of the Catholic Church; Hume with Protestant sects in the rebellions of the seventeenth century. Several key concepts figure in the title of Montesquieu’s crucial chapter: ‘How a Nation’s Laws may Contribute to its moeurs, mani`eres, and Character’ (SL, xix.27). Here his political and legal sociology is applied to Britain, thus greatly amplifying the picture given earlier of its constitutional protections of citizens’ liberties (SL, xi.6). Again, there is a carefully elaborated, if implicit, contrast with France. Montesquieu asked what social forces make for a free polity. Crucial to his account is his theory of the causes of national diversity. Why does a people have certain laws, institutions, and social structures, and not others? His broad answer was that every nation has its esprit g´en´eral, which is determined not only by physical, but also by moral causes: laws, moeurs, mani`eres, religion, upbringing, a shared style of thought, mode of subsistence, economy, and trade (SL, xix.4). What results is a specific ordering of aspects. Some aspects may cut against others. Montesquieu did not assume that societies are always integrated; often he emphasised internal contradictions which might cause corruption or decline within a system. Government, he asserts, should conform to the character (naturel) of the people for whom it was established. So great are the differences in the naturels of nations that the laws of one almost never suit another. Thus laws ought to be made relative to the nature and principle of a government, and the physical and social characteristics of a people (SL, i.3). Montesquieu’s starting point was also that of Hume, who wrote, in his essay ‘Of the Origin of Government’: ‘such is the frailty . . . of our nature that it is impossible to keep men . . . in the paths of justice . . . This great weakness is incurable in human nature.’ Therefore, ‘a great sacrifice of liberty must necessarily be made in every government’ (Hume 1994a, pp. 20, 22). To maintain order, Montesquieu thought, every political society requires at least some repression of men’s wills and imaginations. However, and here he is more sociological than Hume, this repression may be accomplished by such means as religion or principled self-repression of impulse on the part of citizens brought up to put the common good above personal interest. In book xix, Montesquieu treated laws and constitutions as but one way of affecting human conduct. Such is the method used by governments. Civil society has others: moeurs, mani`eres, religion. These may serve as surrogates for laws enforced by penal sanctions, and they can have compelling power comparable to that of laws. Such forces originating in civil society may 156

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The comparative study of regimes and societies also limit and check state action. Moeurs apply internalised restraints upon conduct; mani`eres apply external, social restraints (SL, xix.16). Though laws, moeurs, and mani`eres are analytically distinct, they may operate together, or else a single component may dominate and set the tone of a nation. Japan was dominated by lois, Sparta by moeurs, and China by mani`eres. The basic laws of the Chinese were designed primarily to establish internal tranquillity. All aspects of conduct were subject to ritual. When the rites were observed exactly, China was well governed. But whenever rulers sought to use physical punishments as sanctions, the state fell into anarchy, because the general spirit of Chinese government had been fatally violated (SL, xix.17). Religion is another moral cause independent of government which affects a nation’s character. To the extent to which religion is an effective force, there is less need of state power. Religion can even save a government, which left to its own police power would be overturned. Religion may also determine a people’s orientation towards economic activity and liberty. In a remark later cited by Max Weber, Montesquieu commented that the British had known best how to combine religion, commerce, and liberty. Another set of concepts and theories were formulated in book xviii. This registered Montesquieu’s reaction to a further source of diversity: the societies discovered outside Europe were not all of the same type. Some, like China and the Ottoman Empire, were highly cultured with recorded laws, sciences, arts, and written archives, as well as bureaucratic, judicial, and military structures comparable to those of Europe. Other societies were made up of hunters and gatherers, or of nomadic shepherds, dependent on orally transmitted customs, and without a state apparatus. A third type was based on settlement and agriculture, where it was possible to divide up land and to develop laws of private property. To deal with these diverse societies, Montesquieu developed additional categories based on modes of subsistence, climate, and characteristics of terrain. These he classified as physical causes. He argued that climate and other environmental influences may affect, sometimes crucially, a people’s character and mode of life. In several notorious passages, Montesquieu exaggerated the effects of climate. However, he ultimately rejected deterministic versions of environmental causation. He argued that moral causes overrode physical causes. In response to the contention that in the Caribbean and in the North American colonies African slaves were necessary because Europeans could not work in the tropics, he held that anywhere in the world agriculture is best performed by free labour. Hume, in his essay ‘Of National Characters’ (1748) altogether denied the importance of physical causes, and was perhaps 157

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The new light of reason countering Montesquieu, though both agreed that national character is best explained by moral causes. In book xviii, Montesquieu focused on the different modes of subsistence and the types of law appropriate to each. Nations engaged in trade require legal codes broader and more detailed than those exclusively practising agriculture. Even the latter, however, need more legislation than nations subsisting by flocks and herds, and those living by hunting, which require fewest legal rules of all. Montesquieu drew a widely accepted distinction between ‘savage’ dispersed clans of hunters, and ‘barbarian’ small nations of herdsmen and shepherds. He then gave an account of how the laws and governments of savage (sauvages) and barbarous (barbares) nations differ from those which cultivate land and use money. Native Americans, Arabs, Tartars, and Africans were among the examples given, as were the Germans described by Caesar and Tacitus. All were contrasted with those nations civilis´ees or polic´ees which cultivated the earth and/or engaged in commerce. Although Montesquieu also attributed differences in moeurs and governments to the mode of subsistence, he showed no interest, by contrast with later Scottish theorists, in ranking nations as higher and lower on an ascending scale of development. His tone is remarkably equable. He notes that among peoples who do not use money there are fewer wants and greater equality. Moeurs rather than laws are predominant among those nations which have never divided up their lands. Among them, the old have greatest authority because they control the memory of past practices. Nor does Montesquieu perceive liberty to be determined by modes of subsistence. Among pastoral nations, Arabs are free, Tartars are not. Of such peoples, only the Natchez of Louisiana have a despotic political system (SL, v.13). Montesquieu used comparison to show differences and to demonstrate similarities among peoples and their laws. What is remarkable is the way in which he ranged freely through space and time in search of evidence for his comparative analysis. He contrasted the polities of classical antiquity with those of modern Europe; he was among the first to treat the laws, government, and property of feudal Europe as a system distinctly contrasted with the altogether novel type of society subsequently created by developments in commerce, government, and society. At crucial points, he offered a sustained juxtaposition of British and Chinese society. To do so was unprecedented in a major treatise by a European political philosopher. Montesquieu thought of himself as cosmopolitan and humanitarian, as condemning cruelty and intolerance. He held a pluralist view of human 158

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The comparative study of regimes and societies diversity. Denouncing European conquests, colonialism, and the slave trade, he attacked the arguments that supported these practices. He scorned arguments for slavery as based on contempt for those of different moeurs, or on the absurd pretension that a nation reduced to slavery could be converted to the true faith. How pleasant to act as bandits in the name of Christian zeal! Slavery, he argued, violated the law of nature. Nor was it justifiable on utilitarian grounds. Deleterious to master and slave alike, slavery in the long run was fatal to monarchies and republics. Holding that colonies would weaken rather than enrich metropolitan powers, he added economic to moral reasons for condemning colonialism (Lettres persanes, letter 121). Later Raynal and Diderot followed his lead. 3

Voltaire

Voltaire likewise regarded comparison as indispensable to philosophical history. He gave disparate reasons. Historical truth – philosophical enlightenment, as distinguished from Christian orthodoxy – he claimed, could be attained only by comparing the history of Europe with those of nations outside it. He also argued from utility: a modern commercial society needs knowledge which can be gained only from comparison, alerting statesmen and citizens to what they must emulate if they are to improve arts, agriculture, and commerce (Voltaire 1966, p. 323). By emulation, Voltaire meant learning from another nation so as to compete effectively against it, as when Louis XIV and Colbert purchased English stocking machines in order to make France self-sufficient in their manufacture: one of Louis XIV’s main preoccupations was to inspire ‘that spirit of emulation without which all enterprise languishes’ (Voltaire 1966, p. 141). What unified Voltaire’s analysis was the concept, familiar from Barclay and Bodin, that every nation had a distinctive character (esprit, naturel, g´enie). National characters, he claimed, rarely change. Everything worth knowing about history can be found in ‘l’esprit, les moeurs, les usages des nations’ (Voltaire 1963a, i, p. 195). Readers of his Essai will find that the most sustained portrait of national character was his poisonous attack on the allegedly unchanging qualities of the Jews from the Old Testament to his own day. Voltaire equivocated over the degree of similarity and difference in human nature, as variously interpreted by seventeenth-century theorists. Though he recognised, from Montaigne, the great diversity in ways of life outside Europe, or during other periods of history, he did not renounce the theory, to be found in Pascal and La Bruy`ere, of a single uniform human nature. 159

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The new light of reason The equivocation is apparent in his contrast between nature and custom. ‘Everything intimately linked to human nature is similar from one end of the world to the other: everything that can depend on custom is different . . . Custom spreads variety throughout the universe, nature, unity’ (Voltaire 1963a, ii, p. 810). Custom often amounted to the debris of the past. Thus ‘the power of custom’ explained the peculiar privileges of the French clergy (Voltaire 1966, p. 200). Like superstition, ignorance, and fanaticism, custom works against reason and enlightenment. Because custom is irrational, diversity is random and not ultimately justifiable. Where for Montesquieu human diversity is explicable and desirable, for Voltaire uniformity was the aspiration. In 1764 Voltaire wrote that, despite having long been governed by the same principles, the governments of France and England now differed as much as those of Morocco and Venice. In guarded language, he explained that England was free and France was not (Voltaire 1994a, pp. 55–61). In the same year, he published an article on lois. Asserting again that Britain alone possessed good laws, he dismissed all legal and constitutional arrangements elsewhere. In a startling incendiary metaphor, he advocated discarding existing laws everywhere else, including France. ‘London only became worth living in since it was reduced to ashes . . . If you want to have good laws, burn what you have, and create new ones’ (Voltaire 1994a, p. 20). The Essai ends with a chapter entitled ‘Les moeurs asiatiques compar´ees aux nˆotres’. This sustained comparison is crucial to determining the extent of Voltaire’s Eurocentrism and ‘Orientalism’, as well as to evaluating the depth of his commitment to the greatness of high cultures outside Europe, which he had extolled. He vigorously defended Asian peoples over the ten centuries he discussed against Montesquieu’s charge that their governments were despotic. This was because Voltaire rejected the concept of despotism. He also repudiated Montesquieu’s evidence as inaccurate. The little that was valid in Montesquieu’s theory was best described by distinguishing monarchy and its abuses. Voltaire thus dismissed what Montesquieu had made into the greatest single difference between Europe and Asia. The way seemed open for Voltaire to deny any essential differences and to encourage each to ‘emulate’ the other. Yet at the end, he inexplicably drew back from this conclusion, asserting that ‘everything differs between them and us: religion, maintenance of order, government, moeurs, food, clothes, styles of writing, expression, and thought’ (Voltaire 1963a, ii, p. 808). Voltaire commented on European conquest, colonisation, and slavery. His hatred of injustice and cruelty overcame any easy identification with, 160

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The comparative study of regimes and societies and defence of, European actions. He strongly criticised European explorers, missionaries, and traders. He defended indigenous peoples whom they ‘discovered’, invaded, and exploited. He could find no evidence that the allegedly barbaric practices of peoples of other continents had ever approached the atrocities of Europe’s worst periods. This did not prevent Voltaire from prejudicial views of the supposedly innate qualities of Jews and Africans (Bitterli 1976, pp. 274–80). But he did share with Montaigne, Raynal, Diderot, and Montesquieu the contention that, when overseas, civilised Europeans acted as barbarians. 4

Hume

There was a long-standing relationship between the intellectual traditions and political allegiances of France and Scotland. David Hume and his Scottish contemporaries were well connected with the salons and philosophes of Paris. Hume and Smith rejected the ‘vulgar Whiggism’ which classified the French as living in political slavery, as contrasted with British freedom (Forbes 1975). In his essay ‘Of Civil Liberty’ (1741), Hume depicted France as a modern commercial society, governed by laws protecting the civil liberties and property of her subjects (Hume 1994a, pp. 54–5). In Hume’s typology of regimes, ‘Of National Characters’, France is a ‘civilized monarchy’, characterized by ‘civility, humanity, and knowledge’ (Hume 1994a, p. 85). ‘Of National Characters’ is perhaps the most sophisticated specimen in English of a genre popularised throughout Europe by Barclay’s Icon animorum. A second generation Gallicised Scot, Barclay added national character to the agenda of historians – Lenglet-Dufresnoy’s influential manual on historical study recommended Barclay alongside Bodin as models on this topic. In refining the mode, Hume followed Voltaire and Montesquieu in making l’esprit des nations, their customs, and their ‘manners’ into characteristic topics of philosophical history. But Hume made distinctive contributions. As to the balance which Hume struck between uniformity and diversity, his Treatise of Human Nature (1739–40) pointed to his lasting concern with what is common to all human beings. This underlay his epistemology, moral philosophy, and project for a science of politics. To a lesser extent, Hume was also concerned with diversity, with variations among regimes and societies, above all, with explaining his position on the quarrel between Ancients and Moderns, thus contrasting classical and modern Europe. In the ‘Dialogue’ published at the end of his Enquiry concerning the Principles of Morals (1751), 161

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The new light of reason Hume replied to the contention that ‘fashion, vogue, custom, and law were the chief foundations of all moral determinations’, and that wide differences separated civilised from barbarian natures (§ 25: Hume 1998, p. 116). Hume argued that variant conclusions were derived from universal principles, a fact discovered ‘by tracing matters . . . a little higher, and examining the first principles, which each nation establishes, of blame or censure’ (§ 26: Hume 1998, p. 116). For Hume, as an admirer of Newton, explaining the workings of the human mind meant the reduction of complexity to a few causes; and the discovery of the laws of mental operations by verifiable experience. Thus his treatment of human nature, and later politics, would be successful to the extent that it was simple, empirical, and not subject to indefinite variations. Hume believed that a science of politics was both possible and necessary. Like Voltaire, Hume regarded human nature as uniform, and believed that most diversities in behaviour, institutions, and beliefs were due to customs, manners, and national characters. But unlike Voltaire, he thought that most human differences could be accounted for by differences in regime types: Men cannot live without society, and cannot be associated without government. Government makes a distinction of property, and establishes the different ranks of men. This produces industry, traffic, manufactures, law-suits, war, leagues, alliances . . . and all those other actions and objects, which cause such a diversity, and at the same time, maintain such an uniformity in human life. (THN, ii.iii.i, p. 402)

Critics have disagreed about whether Hume sustained a stable position about human nature in his later Enquiry concerning Human Understanding (1748). Some stress his failure to admit historical and cultural variability in statements such as: ‘Mankind are so much the same in all times and places, that history informs us of nothing new or strange.’ Others call attention to his qualifications: ‘We must not, however, expect that . . . all men, in the same circumstances, will always act in precisely the same manner, without making allowances for the diversity of characters, prejudices, and opinions’ (Hume 1975, pp. 83–4). Unlike Voltaire, Hume attacked rationalism, and viewed human customs and habits positively. A mitigated sceptic, he set out to prove that reason alone cannot justify our judgements. These, he argued, are the work of our imagination. In his History of England (1754–62), he held: ‘Habits more than reason, we find in everything to be the governing principle of mankind’ (Hume 1884, v, p. 184). For Voltaire, custom was an impediment to rational 162

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The comparative study of regimes and societies politics; but Hume distrusted abstract principles, a priori reasoning about politics and morals. Hume held that comparison is not merely an intellectual operation. It involves the passions of pain and pleasure, malice and envy. ‘The misery of another gives us a more lively idea of our happiness, and his happiness of our misery.’ Comparison is often ‘a kind of pity reversed, or contrary sensations arising in the beholder, from those which are felt by the person, whom he considers’ (THN, ii.ii.viii, p. 375). Other nations are praised or criticised because of the psychological consequences for those comparing them. ‘This is the reason why travellers are commonly so lavish in their praises to the Chinese and Persians, at the same time, that they depreciate those neighbouring nations, which may stand upon a foot of rivalship with their native country’ (THN, ii.ii.viii, p. 379). Hume here offers an analysis pointing not to a Eurocentrism deprecating ‘the other’, but rather to the assertion that neighbours are more apt to be hated than are more distant societies. Adam Ferguson also stressed that European societies were bitterly divided internally and externally. From his Treatise to his final essay, ‘Of the Origin of Government’ (1777), Hume emphasized the crucial role of government. Comparison of regimes involved judgement of their relative merits rather than reference to any ‘fixed unalterable standard in the nature of things’. Seeing himself as an impartial observer transcending local partisanship, as a citizen of Europe, Hume attempted a new set of political classifications. This was not done in treatise form, but in the course of essays and history writing. He distinguished between absolute monarchies and free governments, and between regular and arbitrary governments. Regimes which were both absolute and arbitrary he tended to call ‘barbarous monarchies’ or despotisms, and these he identified with both the Roman emperors and with ‘Eastern’, that is, Asian or Oriental, regimes, such as the Ottoman Empire. But such governments could arise in Europe. Hume called Oliver Cromwell’s Protectorate ‘military and despotic’; it ‘parcelled out the people into so many subdivisions of slavery’ (Hume 1983, vi, p. 74). But absolute monarchies may also be ‘civilized’, by which Hume meant that although their kings had sovereign authority, they chose to govern according to general laws. He argued that the French monarchy was of this kind. The king is limited by ‘custom, example, and the sense of his own interest’. In the civilised monarchy of France, liberty, not arbitrary coercion, prevailed. Property was secure, ‘industry encouraged; the arts flourish, and the prince lives secure among 163

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The new light of reason his subjects, like a father among his children’ (‘Of Civil Liberty’, Hume 1994a, p. 56). Free government ‘admits of a partition of power among several members, whose united authority is no less, or is commonly greater than that of any monarch; but who . . . must act by general and equal laws, that are previously known to all the members and to all their subjects’ (Hume 1994a, p. 23). The two varieties of free government are limited monarchies, such as Britain, and pure republics, the worst form of which was direct democracy. But if improved in a number of ways he detailed, even a republic could become a ‘perfect commonwealth’ (Hume 1994a, pp. 221–33). Hume’s comparison of absolute monarchy and free government narrowed the choice between them. He argued that both France and Britain regularly enforced the rules of justice, and protected the property of their subjects. Differences between them were marginal. Free governments encouraged commerce more than did civilised monarchies; while in civilised monarchies the arts flourished more. Thus Hume subverted the commonplace contrast between French slavery and British liberty dear to the ‘vulgar Whigs’. He regarded this conclusion as a triumph over British self-congratulatory prejudice. His favourable judgement of French monarchy ignored the views of those in France who were critical of it. The Revolution that occurred after his death would have been inexplicable on his analysis. As a comparative analyst, Hume’s acuity was more evident in questions of method, as in his essay on national character. This contains no sustained empirical analysis of actual societies. (His most extended comparison in terms of group characteristics occurred in his ‘Dialogue’, where he playfully contrasted the ancient Athenians with the modern French.) In ‘Of National Characters’, Hume accepted, but qualified, the familiar notion that each nation has a peculiar set of ‘manners’. The diversity of nations is due either to moral causes or to accidents; physical causes produce no discernible effects. Human history demonstrates that manners are spread through the laws made by governments. In this way a uniform national character can be stamped upon even a far-flung empire. Despite variations in their climate, the Chinese have the greatest similarity of manners. Here Hume attacks Montesquieu’s apparent doctrine of climatic determination, but overlooks Montesquieu’s argument that moral causes could override physical ones, and the fact that he had explained Chinese uniformity by close analysis of the use of ritual. In his essay, ‘Of Refinement in the Arts’ (1752), Hume stated what he regarded as the distinctive traits of European civilisation in his time. When 164

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The comparative study of regimes and societies commerce and industry flourish, the spirit of the age affects all the arts and the minds of men. The more these refined arts advance, the more sociable men become. Flocking to cities, they learn to receive and communicate knowledge; to show their wit and breeding, their taste in conversation, and styles of living. As it becomes possible for men and women to meet in an easy and sociable manner, their behaviour becomes more refined. Thus ‘industry, knowledge, and humanity are linked together by an indissoluble chain’ (Hume 1994a, p. 107). For laws, order, police, discipline cannot be perfected before human reason has been refined by commerce and manufacture. Hume was most interested in comparing the Europe of his time with that of classical antiquity, thus taking a firm stand in the quarrel of the Ancients and the Moderns, on the side of the latter. He regarded modern Britain and France as the most civilised and polished commercial societies yet known. He interrupted the narrative in his History of England to contrast the lowlier stages of manners and governments in earlier centuries with those of the present time. He rejected the attacks on modern arts and sciences by Rousseau and Ferguson. Hume displayed little interest in the world beyond Europe. Where Montesquieu and Diderot used comparison with the nonEuropean world to distance the arrangements of their own society, as a means to insights for its reform, Hume showed no interest in such a procedure. His remarks about non-European peoples are categorical and haphazard. There was none of the careful qualification, weighing of evidence, and criticism of sources found in his impressive essay, ‘Of the Populousness of Ancient Nations’ (1752). Perhaps the comparison most important to Hume was that between Britain and France, with regard to which he established a distinction between what has been dubbed ‘scientific Whiggism’ and, by contrast, the ‘vulgar Whig’ complacency of his British contemporaries (Forbes 1976). Yet many in France accepted just the view rejected by Hume. 5

Raynal, Diderot, the Deux Indes, and the Suppl´ement to Bougainville

Few comparative studies have been so widely read in their own time – and so neglected after it – as the ten volumes produced by the Abb´e Raynal. Its baroque title states both its method and global concerns: A Philosophical and Political History of the Settlements and Trade of the Europeans in the East and West Indies (1770); more simply the Deux Indes. Alongside Voltaire, Montesquieu, and Rousseau, Raynal ranks among the eighteenth-century French authors most often translated and discussed abroad. Published in 165

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The new light of reason more than thirty editions and twenty-four abridged versions, his work was an international bestseller. It was read and interpreted in discrepant but seldom uncontroversial ways throughout the world (L¨usebrink and Tietz 1991). It is said to have inspired the Haitian revolutionary Toussaint L’Ouverture, and to have prompted Napoleon’s invasion of Egypt. A vast project which occupied Raynal for twenty years, the Deux Indes contained forty-eight maps, as well as the best available statistical information about European expansion and commerce worldwide. Although based in part on travel accounts, Raynal’s data was gathered primarily from an unprecedented number of government documents, furnished by a network of officials and informants in all the colonial powers. This extensive coverage was combined with bold moral judgements stating an anti-colonial position, linked to radical criticism of European governments. The book popularised the condemnation of European conquests, the maltreatment of non-Europeans, and the slave trade. After the Paris parlement condemned the third edition in 1781 as ‘a book apt to produce popular uprisings’, it was burnt by the public hangman (Benot 1970, p. 163; Feug`ere 1922, p. 278). In a list of the bestselling illegal books in France between 1769 and 1789, the Deux Indes ranked fifth (Darnton 1995). Over 25,000 copies were sold in the American colonies alone (Wolpe 1957, p. 9). Although initially accepted as the work of Raynal alone, in fact he enlisted or purchased the collaboration of figures associated with the Encyclop´edie, above all Diderot. The Deux Indes thus continued the work of the philosophes (Wolpe 1957). Its collaborative nature shows through in the contradictions and ambiguities within it, and the divergences between the first three editions. It is a polyphonic text. But Raynal conceived its design, gathered its materials, and controlled its organisation, printing, and diffusion (Benot 1991; Duchet 1991). In this immensely ambitious book virtually all known peoples appear and are successively the subjects of comparison. Colonisers and colonised are contrasted in terms of their laws, governments, religions, moeurs, customs, usages, practices, commerce, and general spirit. The book also reflects the political issues at stake in the intense contemporary disagreements about how to evaluate the Chinese and Russian empires. The Deux Indes is among the most significant demonstrations that, by the end of the eighteenth century, many European thinkers had transcended the limits of their own continent. More than any other major work of the century, the book systematically reversed prior judgements about the old world’s political and moral superiority. It did so by inverting the values of 166

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The comparative study of regimes and societies the polar oppositions long made in European thought between barbarism and civilisation, between l’homme sauvage and l’homme polic´e, savage man and civilised man. These familiar invidious dichotomies were reversed in Diderot’s indictments of European conquests and colonisation. The conclusions drawn are summarised in the contrast between peuples sauvages and peuples polic´es or civilis´es (Diderot 1992, pp. 193–7). Diderot engages in a spirited demonstration of the superiority of savage peoples, whose mode of life is contrasted with the corruption and injustice of ‘polished’ European societies. He condemned the practices of Europe as contradictory to its own self-proclaimed values. Readers of the third edition were struck by the thundering apostrophes, at once denunciatory and sentimental. Commenting on the slave trade, Diderot addressed his audience: ‘Reader, do you not share the indignation which fills my heart when I read this?’ On the question of whether the European discovery of the Americas had been beneficial, the Deux Indes answered unequivocally that its effects had been catastrophic. Nor had Europeans behaved better elsewhere. Of the Portuguese in India, Diderot spoke of ‘European barbarians . . . I protest solemnly . . . You are no better than birds of prey. You have no more morality, no more conscience’ (Raynal 1780, bk i, ch. 24, pp. 225–6). Missionary proselytisation, the treatment of native Americans, the slave trade, are all condemned with a violence that called explicitly for revolt by subject populations abroad, and which have been interpreted as carrying an implicit appeal for revolution in Europe.3 Condemning the rule of the East India Company, Diderot wrote: ‘Sooner or later justice must be done. If not, then I shall address the people: “You, whose cries of rage have so often made your masters tremble, what are you waiting for? You have your torches and the stones which pave the streets. Tear them up”’ (Raynal 1780, bk ii, p. 398). Although Diderot’s contributions to the Deux Indes were not identified until the middle of the twentieth century, the same was not true of his Supplement to the Voyage of Bougainville, Or Dialogue between A and B on the Inappropriateness of Attaching Moral Ideas to Certain Physical Actions that do not Accord with them (1772; publ. 1796; Diderot 1992, pp. 35–75). Comparison in the Suppl´ement, as in Montesquieu’s Lettres persanes, is combined with wit to form a brilliant rhetoric designed to engage and persuade the 3 There are two competing interpretations of this passage. The first is that he was indeed calling for revolution in Europe (Benot 1970, p. 194; Strugnell 1973, p. 209). The second is that Diderot never abandoned his allegiance to limited monarchy. Even when praising tyrannicide, he had no vision of a new order alternative to the French monarchy (Mason 1982, pp. 345–6).

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The new light of reason reader on controversial points too dangerous to make explicitly. Like much else by Diderot, it was written in dialogue form, and intended to provoke reflection on and stimulate criticism of French and European culture, particularly Christian sexual morality. The Suppl´ement’s subtitle stated the central argument: to restrict human sexuality by moral and religious codes was unnatural and harmful. Comparing the sexual code of the Tahitians to that of Europe, Diderot rejected the European. He tells of a Tahitian, Aotourou, who was brought to France by Bougainville, the commander of a French mission exploring the South Pacific. This man, accustomed to natural liberty, perceived French usages and lois as chains. When he returned, the Tahitians could not comprehend his account of France, ‘because in comparing their own ways with others, they’ll prefer to regard Aotourou a liar than to think us so mad’ (Diderot 1992, p. 40). Although comparative, Diderot’s argument was not relativist. Human nature was his standard. He condemned the sexual attitudes, legal codes, and social practices of Europe because of their arbitrary evaluations of natural actions. Through their civil codes, and through religion, Europeans had introduced an artificial man into natural man, and instigated a war between them. In Tahiti, religion, morality, and legislation did not repress natural sexual impulse, and the concept of property did not apply to women or to the relations between the sexes. Hence in Tahitian society there was polygamy, and the absence of concepts of adultery, promiscuity, sexual fidelity, and, above all, chastity. Of all European practices, the vow of chastity taken by the clergy was least comprehensible to the Tahitians, a point made in a conversation between the Tahitian Orou and the ship’s Catholic chaplain. Tahitian hospitality led Orou to offer his wife and daughters to the clergyman; after initially refusing them, he eventually decides he could not offend them. Diderot was of course indebted to a substantial tradition of male sexual utopianism; his Tahiti is based on male virility and female fecundity. Moreover, his playful radicalism is brought to a close with carefully modulated reformist conclusions. Summing up, A asks what conclusions should be drawn from the Tahitians’ moeurs and usages. B answers that when laws contradict nature, they become impossible to enforce because they produce moeurs and individuals at war with themselves. Should Europeans try to overthrow their bad laws, or accept the practices of their nations? The Suppl´ement’s conclusion applies equally to political and moral arrangements: ‘We must speak out against senseless laws until they are reformed and, in the meanwhile, abide by them. Anyone who . . . violates a 168

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The comparative study of regimes and societies bad law thereby authorises everyone else to violate the good’ (Diderot 1992, p. 74).

6

Herder

Herder’s work is indispensable to any discussion of eighteenth-century comparative method. While most authors believed human beings everywhere fundamentally are the same, and hence capable of comparative treatment, Herder scorned all efforts to establish commensurability among human societies. Herder’s first major work, Yet Another Philosophy of History (1774), derided comparison and all those who attempted to practise it. Comparisons of ways of life, literatures, and political systems were meaningless, as were all efforts to classify or rank them. To do so was to miss precisely what distinguishes them. Human nature and the image of happiness change with each condition and climate. Diversity is to be celebrated, and no single standard can be applied to the infinite variety of cultures. ‘All comparison is unprofitable’ (Herder 1969, p. 186). Herder learned from Hamann to dismiss as superficial the qualities most esteemed by the major writers of his age (Berlin 1981, pp. 1–4). ‘The general philosophical philanthropical tone of our century wishes to extend “our own ideal” of virtue and happiness to each distant nation, to even the remotest age in history’ (Herder 1969, p. 325). In part, this critique was due to Herder’s emphasis on difference; in part, to his distrust of abstract concepts. He came to hold an abiding hostility to Montesquieu. This is puzzling, for they shared many attitudes. Both were hostile to the absolute monarchies of their time, Herder regarding them as regimes fatal to civic virtue, as well as to moral obligations. He especially had in mind the threat posed by Russian despotism to the republican government of Riga. Both men attacked European colonialism and conquest, and the marriage of commerce and religious mission. Thus Herder remarks: Soon there will be European colonies everywhere. Savages all over the world become ripe for conversion as they grow fonder of our brandy and our luxuries . . . Trade and popery, how much have you already contributed to this great undertaking! Spaniards, Jesuits, and Dutchmen: all you philanthropic, disinterested, nobler, and virtuous nations. (Herder 1969, p. 206)

Herder convicted Montesquieu of empty abstraction, overlooking his commitment to empirical investigation, and to the values found in tradition. He mistook an ideal-type analysis of political regimes for reductive crudity. 169

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The new light of reason In our political economy and political science, philosophy has offered us a bird’s eye view in place of an arduously acquired knowledge of the real needs and conditions of the country . . . The principles developed by Montesquieu allow a hundred different peoples and countries to be reckoned up extempore on a political multiplication table. (Herder 1969, pp. 198–9)

In no small measure, Herder’s critique was part of a wider attack on the dominance of French cultural values, and resentment at the Francophilia of princes like Frederick II of Prussia. In fact, besides a few visits outside of Germany, Herder was far less cosmopolitan in outlook than many of the French writers he criticised. His own treatment of Africans and Chinese in his Ideas for the Philosophy of the History of Mankind (1784–91) derived from uncritical European standards of value. Herder, a Lutheran pastor, had a further reason for his hostility. He condemned the heirs of Bayle – Montesquieu, Voltaire, Diderot, Hume – as thrusting Europe into a whirlpool of scepticism. Their abstractions were built upon their spiritual nullity. One remark against Montesquieu’s alleged reductionism points to the shape of Herder’s own philosophy of history: ‘The history of all times and peoples, whose succession forms the great, living word of God, is reduced to ruins divided neatly into three heaps . . . O, Montesquieu!’ (Herder 1969, p. 217). Herder’s celebration of difference stemmed from a theology in which cultures were identified as revelations of the divine in history. There was a scheme of human development according to a divine plan, in which successive cultures implicitly carried their predecessors within themselves. ‘The Egyptian could not have existed without the Oriental, nor the Greek without the Egyptian; the Roman carried on his back the whole world. This indeed is genuine progress, continuous development’ (Herder 1969, p. 188). In his late work, he conceives of all peoples, arts, and sciences as developing towards a common Humanit¨at. It has become an orthodoxy to assume that the comparative analyses conducted in the Enlightenment were wholly dependent on binary distinctions between Europe and the ‘Other’, and were designed to reinforce European domination of non-Europeans. Of course, assertions of European cultural superiority were rife, as were defences of colonialism and conquest. Yet a significant minority turned the pretensions of Europeans against themselves, and their books found a readership. Structured analysis of experience elsewhere in the world became a source of polemical critique of European practices and values. Just as Adam Smith looked with ambiguous apprehension upon the effects of the modern commercial system, so others looked with similar misgiving upon the impact of the modern international state 170

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The comparative study of regimes and societies system. In 1791, William Robertson, pillar of the Church of Scotland and of the University of Edinburgh, wrote: In whatever quarter of the globe the people of Europe have acquired dominion, they have found the inhabitants . . . different in . . . complexion and . . . habits of life. In Africa and America, the dissimilitude is so conspicuous, that . . . Europeans thought themselves entitled to reduce the natives of the former to slavery and to exterminate those of the latter. (Robertson 1791, i, p. 80)

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6 Encyclopedias and the diffusion of knowledge dan i e l roc h e ∗

By way of its conception, production, and distribution, the Encyclop´edie illustrates, more forcefully than any other publishing venture of the eighteenth century, how innovative philosophies of the period came to be disseminated, and how the market of ideas in the age of Enlightenment was organised.1 Current research on the Encyclop´edistes, and on their allies and enemies, makes plain that both the economic and social forces which underpinned their enterprise, as well as those which resisted it, were for technical and political reasons joined together in the same ideological world. Thanks to the growth of literacy and the economic, cultural, and scientific institutions which literacy served, books came throughout the eighteenth century to acquire an unprecedented significance. The advent of commercial society allowed for the wide circulation of the printed word through newspapers, magazines, and other publications. Authors could manage to earn a livelihood from their writings alone. Intellectuals could become a political class. A system of signs could be transformed into systems of thought, and by way of their diffusion to readers impressed by them, revolutionary ideas could come to have revolutionary implications. This ‘immortal work’, as Voltaire once termed the Encyclop´edie, has for virtually the whole of the period since its completion appeared the emblematic monument of eighteenth-century culture. While in principle conceived as a work of reference and a compendium of knowledge distilled from other sources, the vast collection of more than 70,000 articles assembled in 25,000 folio pages, comprising seventeen volumes of text, eleven tomes of plates ∗ Translated by George St Andrews and Sylvana Tomaselli and adapted by Robert Wokler. 1 In the past thirty years scholarship on the Encyclop´edie has benefited from work by specialists studying the history of book production and the book trade as well as those working on the text itself. The starting points are Lough 1968, 1971; Proust 1962, 1965, 1972. There are indexes and inventories in Schwab et al. 1971–3. For the Encyclop´edie as an enterprise see Bowen 1969; Kafker 1976; Venturi 1946; and especially Darnton 1979. For its early press reception: Birn 1967; Lough 1971, pp. 98–111. On the wider intellectual background: Chartier 1990; Furet 1965; Roche 1965–70, ii.

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Encyclopedias and the diffusion of knowledge and seven volumes of supplements and tables, in fact came to occupy a central place within Europe’s republic of letters and even managed to help shape its political landscape. At once hounded and protected by Europe’s prevailing regimes, the Encyclop´edie, by way of the history of its publication and diffusion, attests to some of the most crucial features of the genesis of political modernity in the period from 1750 to 1800. ‘Since the rebirth of letters amongst us’, wrote Diderot in his ‘Prospectus’, ‘it is in part to dictionaries that we owe the general enlightenment which has spread throughout society . . . How important, then, to have a work of this kind . . . to guide those with the courage to seek . . . to enlighten those who learn only for themselves’ (Diderot 1875–7, xiii, p. 130). In announcing the imminent publication of the Encyclop´edie, Diderot proceeded to acknowledge his debt to the vast intellectual effort made before him, since the Renaissance and the age of humanism, which had, through the multiplication of general and scientific dictionaries, established the pedagogy of Western civilisation by way of defining words and explaining the meaning of concepts. The enterprise which he and d’Alembert were about to launch could be justified as different in character from its numerous precursors and only now possible for the first time, even while preserving an inherited legacy of erudite learning and arcane curiosities, since it adopted a fresh perspective which presupposed a new kind of public comprised of lay readers, receptive to an orderly classification of known facts and received wisdom conveyed in a vernacular language. In their collective endeavour the Encyclop´edistes ventured to supplant both the cosmic systems and canonical principles of medieval theologians, and the dialectic of ancient and modern traditions adopted by Renaissance humanists, with models inspired by the work of engineers, geometricians, and empirical scientists, an enterprise which accorded well with the preferences and capacities of a new generation of readers. 1

English philosophy, encyclopedism, and technical knowledge

At least three related features of the intellectual milieu of the eighteenth century made this transformation possible: first, the encounter between Cartesian modes of analysis and English empiricist perspectives; secondly, the rise of utilitarianism in the light of which inventories of knowledge could be perceived as indispensable to the progress of society; and, finally, new standards of cultural sociability in Europe which brought with them a perceived conjunction of institutions of knowledge and power. 173

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The new light of reason Locke’s Essay concerning Human Understanding (1689), often regarded as having launched the age of Enlightenment as a whole, was lavishly praised by French commentators throughout the eighteenth century, among them Voltaire in his Lettres philosophiques (1734) and d’Alembert in his ‘Discours pr´eliminaire’ to the Encyclop´edie, who each made plain, with central reference to Locke’s work, the debt owed by contemporary French thinkers to British philosophy. In discussing the simple ideas perceived by persons who had undertaken research in physics, Locke had expressed the hope that the words they employed to signify the things they knew should be accompanied by small line engravings which would represent them. Even before Locke, Francis Bacon’s Novum organum (New Organon, 1620) – whose system of classification of the sciences d’Alembert borrowed and placed at the head of the Encyclop´edie – followed by Descartes’s Discours de la m´ethode (1637) and Newton’s Principia mathematica (1687), had articulated a growing demand among scientists and philosophers for a synthetic systematisation of knowledge made transparent by a precise use of language (see Furet 1965). Newton’s description of words as irreducible sketches of reality and Locke’s focus on the fundamental relation between thoughts and words together illustrated how the progress of the human mind was tied to the use of concrete terms expressing general ideas. Locke’s and Newton’s analyses of language thus showed how its careful use was indispensable to experimental science. They regarded language as an active means of knowing, no longer defining essences or pointing to innate ideas, but depicting the real. The stress placed by Locke and his followers on sensation as the ultimate source of ideas, and on the use of language for an empirical understanding of reality, helped to shape intellectual currents favourable to the introduction of concrete data in dictionaries on both sides of the English Channel. The pursuit of scientific precision and mathematical exactitude thus contributed greatly to that spirit of secularisation which characterised the production of books in both Britain and France throughout the eighteenth century. A critical spirit of a kind equally necessary for this development had already been plainly manifest in Pierre Bayle’s Dictionnaire historique et critique (1697), which had also shown the potential advantages a dictionary could afford by virtue of its very genre, introducing a simple arrangement in alphabetical order rather than any principles of deduction, hierarchical precedence, and subordination. Entries classified lexically rather than cardinally were thus each equally eligible, in principle, to independent scrutiny (Mator´e 1953; R´etat 1971). This triumph of the fact, which came to revolutionise both metaphysics and history, marked a fundamental attitude of the Encyclop´edistes 174

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Encyclopedias and the diffusion of knowledge in general, bringing a fresh outlook upon all the productions of the human mind together with an optimistic faith in the capacities of human reason to progress towards the triumph of truth. The Encyclop´edie managed to apply to the whole of human knowledge a method which for Bayle had been restricted to theology and history alone. Yet its dedication to the classification of facts by way of a lexical ordering of information also implied new methods of controlling that information. In applying inductive methods drawn from their precursors to social institutions and political concepts, no less than to natural phenomena, Diderot and d’Alembert opened up the prospect of the organisation and analysis of the human sciences along lines mapped by the disciplines of English experimental science and physics. While the prospectus of 1750 acknowledges a debt to earlier English dictionaries, including John Harris’s Lexicon Technicum (1704–10) and Thomas Dyche’s New General English Dictionary (1735), the Encyclop´edie followed such precursors mainly in its lexical organisation and critical attitude, rather than by recapitulating specific entries. The influence credited to Ephraim Chambers’s Cyclopedia or an Universal Dictionary of Arts and Sciences, which first appeared in 1728 and was itself inspired by earlier French, Italian, and English dictionaries, might have proved of a different order, if the initial aspiration of the Encyclop´edie’s publisher, Andr´e Franc¸ois Le Breton, to produce nothing more than a translation of Chambers’s text, had been pursued. Johann Jacob Brucker’s Historia critica philosophiae (first published in Leipzig between 1742 and 1744, with a supplementary volume in 1766) was, however, to remain a constant model for Diderot in particular, many of whose articles on philosophical and political themes proved little more than French translations of the Latin text of this German pastor, whose own entries had been inspired by both Pufendorf and Bayle. Diderot also borrowed much material from other sources, including the Abb´e Gabriel Girard’s Synonymes franc¸ais (1736), while d’Holbach, in his own philosophical contributions, drew heavily from, and frequently refers to, the Grosse vollst¨andiges Universallexicon aller Wißenschaften und K¨unste (Universal Lexicon of Human Knowledge and Arts), published in Leipzig between 1732 and 1750 (Mator´e 1968). 2

French encyclopedism, the academies, and the public sphere

All these and other dictionaries and encyclopedias of the late seventeenth and early eighteenth centuries were conceived as works of reference which could embrace both ancient and modern science and scholarship in a fresh 175

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The new light of reason idiom. But in France the conjunction of at least three exceptional advantages made it possible for them to assume major cultural significance in the public domain. First, the substantial resources of several Parisian publishing houses brought power to their format of the printed word as nowhere else in Europe. Secondly, the universalist pretensions of the French language, with its precise vocabulary, controlled grammar, and enriched lexicon, served to enhance the imperial status of a regime politically characterised as an absolutist monarchy. And, thirdly, the especially animating roles of d’Alembert and above all Diderot, in particular, whose zeal, competence, and network of chosen collaborators enabled them to edit their work as they saw fit, made it possible for them to assert their freedom and autonomy as intellectuals. The editors’ conscription of a society of men of letters to their cause would contribute to the drawing of new boundaries of politeness and cultivated discourse, excluding archaic terms, neologisms, obscenities, and base and trivial words, somewhat in the manner of the dictionaries of the language of classicism undertaken by Pierre Richelet in 1680, Antoine Fureti`ere in 1690 and the first Dictionnaire de l’Acad´emie franc¸aise (1694). But the distinctions often consecrated in these earlier projects between the vocabularies of l’honnˆete homme (a gentleman), on the one hand, and of artisan crafts and technical expertise, on the other, were of scant interest to them. Fureti`ere himself sought to append inventories of everyday words to his dictionary, and the multitude of technical manuals and medical textbooks that appeared in the years preceding the publication of the Encyclop´edie bears testimony to the growing appeal in that period of a new, more technical, conception of science and the Baconian conjunction of practical activity with speculative thought. By virtue of their extraordinary attention to the minute details of artisan manufactures and occupations, the Encyclop´edistes, however, went much further in plumbing the depths of a commercial world deemed unfit for serious scrutiny in the age of classicism. They turned to and recovered an older tradition of practical treatises on arts and crafts, partly inspired by the sixteenth- and seventeenth-century th´eaˆ tre des machines, and they capitalised upon a number of late seventeenth- and early eighteenth-century treatises and collections which drew upon that tradition, including Thomas Corneille’s Dictionnaire des arts et des sciences, Chomel’s Dictionnaire e´conomique, and Jacques Savary Desbrulous’s Dictionnaire universel de commerce (1723). By 1758, as recorded in Durey de Noinville’s Table alphab´etique, nearly five hundred dictionaries were available to the public (Mator´e 1953; Proust 1962). Such enthusiasm for dictionaries and manuals attests to the growth of a fresh market which publishers throughout Western and Central Europe were 176

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Encyclopedias and the diffusion of knowledge eager to harvest, with those based in Paris possessing the most ample means to cultivate it. The new fashion also had political significance, to which Diderot was especially attuned. It coincided with the emergence into print of French political economy (Perrot 1984). After the economic crises of the early eighteenth century, including the collapse of John Law’s schemes of reform around 1720 which had greatly shaken the social fabric of France, fresh avenues of self-promotion and economic mobility came to be improvised whose steps could be lexicologically followed and plotted. In spite, or perhaps even because, of its indiscreet theological bias, the Abb´e No¨el Antoine Pluche’s Spectacle de la nature (The Spectacle of Nature, 1732–50) symbolised the new state of mind, in uniting the practical utilitarian goal of cataloguing and disseminating knowledge of the natural world with a philosophical history of humanity’s evolution and progress. In propounding a providential ethic of work which gave warrant to human enterprise and ambition, it helped undermine the holistic, static, and unadventurous principles of Christian political economy before the age of enterprise. While marvelling at the wonders of God’s creation, Pluche was equally enraptured by the ingenuity of inventors and scientists, whom he invited to join with philosophers so as to publicise the practical experience accumulated by generations of artisans. He held the advance of human thought and science to be inseparable from material progress. In his eulogy of economically productive forces, reconciled with due respect for dogma, can be found one of the great fissures that separated eighteenth-century France from its classical heritage as well as the hidden hand and force which was to steer a new culture of sociability. In his own article, ‘Encyclop´edie’, published in 1755, Diderot criticises Europe’s learned societies for their excessive specialisation and their neglect of organising plans and principles of research. But the reasoned dictionaries of the arts and sciences of the mid-eighteenth century were also the direct and indirect heirs of Europe’s learned societies and the academic movement which in the seventeenth century gave rise to them. The Encyclop´edistes’ references to new terms drawn from the 1718 and 1740 editions of the Dictionnaire de l’Acad´emie franc¸aise, and to material drawn from the M´emoires de l’Acad´emie des inscriptions and the Histoire et m´emoires de l’Acad´emie des sciences, bear ample testimony to such debts. Despite the French monarchy’s control of both the membership and publications of its national academies, there was substantial collaboration and exchange between their diverse milieux and the world of Diderot and his contributors: ‘An encyclopedia is not produced on command’ (Diderot 1992, p. 22). Inspired by the Abb´e Bignon, R´eamur, 177

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The new light of reason and Fontenelle, academicians accumulated manuscripts and scientific documents in archives, thereby collecting descriptions and drawings of crafts and technical procedures in much the same manner as the Encyclop´edistes. Through the pages of the Journal des savants, the Dictionnaire of Savary or the publications of the Acad´emie franc¸aise itself, the Encyclop´edistes had direct access to this information and greatly contributed to its diffusion. In their own fashion they subscribed to the manner of thinking, the methods, and style of the Acad´emie’s centenarian permanent secretary, Fontenelle. In seeking to imitate the Parisian establishment of the Acad´emie franc¸aise and Acad´emie des sciences the provinces of France soon followed the example of their capital. Some twenty learned societies which brought together notable local amateurs and professional specialists to cultivate both the sciences and belles lettres obtained their letters patent in the early eighteenth century – among them the Acad´emie de Dijon whose announcement of a prize competition on the moral effects of the progress of the arts and sciences in 1749 was to launch the career of Rousseau, at once the author of the principal articles on music and political economy for the Encyclop´edie and chief critic in the age of Enlightenment of its central aspiration to promote virtue through knowledge. His first discourse on these themes was rebuffed by d’Alembert in his ‘Discours pr´eliminaire’ to the Encyclop´edie. Such provincial academies, in Besanc¸on, Bordeaux, Lyons, Metz, and Toulouse, as well as Dijon – like their counterparts in Bristol, Edinburgh, K¨onigsberg, Lausanne, and Naples – were modelled more in the image of the open-textured Royal Society of London than of the narrowly specialist academies of Paris, in so far as they embraced scholars and scientists of whom the amateurs among them in particular were often polymaths. But no less than their Parisian counterparts, they provided the Encyclop´edie’s contributors with a vast network of information and, through their national and cosmopolitan connections, brought high levels of integration to bear on the Enlightenment’s chief collaborative publishing venture (Proust 1968; Roche 1978). Of cultural significance above all else, such assemblages of intellectuals dedicated to the advancement of learning for utilitarian ends were also political organisations, both in the sense that their members were highly influential in their communities, and in so far as their meetings were facilitated by the prevalent authorities. By way, in effect, of authorising the academies of the late seventeenth century and their multiplication in the eighteenth, the French state implicitly participated in projects of reform, thereby depicting its own absolutist principles as progressive and enlightened. On more than one occasion when France’s ecclesiastical powers sought to suppress the 178

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Encyclopedias and the diffusion of knowledge Encyclop´edie, Malesherbes, the official director of publications, intervened to save it, as when, on the evidence of his own M´emoires sur la librairie (1758), he ensured the protection of its plates following the orchestrated ban of Helv´etius’s De l’esprit (1758) which threatened Diderot’s work in its wake. The standards of sociability promoted by Diderot’s and d’Alembert’s international republic of letters were, in many respects, more politically conservative and more legally conformist than were d’Alembert and especially Diderot themselves. But in their creation of what J¨urgen Habermas has termed a ¨ b¨urgerliche Offentlichkeit or bourgeois public sphere, in the interstices of their collaboration by virtue of which talent took precedence over noble birth, they helped grant to a new class of intellectuals a social standing and political influence never achieved before (Habermas 1989). Their endeavours gave a special flavour to older notions of autonomy and freedom, and their principal social and economic achievement was not so much to secure the triumph of the bourgeoisie as the emancipation of knowledge. It is mainly in the light of such developments that the question of the relationship between freemasonry and the Encyclop´edie may still be regarded as significant, even though there are scant grounds for supposing any causal connection (Venturi 1946, pp. 16–23). The Discours of the Chevalier Andrew Ramsay, undoubtedly known in masonic lodges from the late 1730s, differed on many counts from Diderot’s and d’Alembert’s principles, but it expressed much the same aspirations for the enlightenment of public opinion, and there can be little doubt that a number of the contributors enlisted to the camp of the Encyclop´edistes were indeed freemasons of diverse affiliations. But the chief impact of freemasonry upon the eighteenth-century republic of letters perhaps lies elsewhere – in that the lodges, more even than the academies, put into practice on an unprecedented scale an ideal of a meritocracy that would also prove characteristic of the encyclopedic enterprise. All these institutions together thus proved to be agents of a new culture of sociability based upon talent or intellectual merit alone, thereby removing one of the most central, if informal, anchors of the ancien r´egime without directly attacking its political structures. In a spirit of free association, shorn of the trappings of rank, even secret societies which had little interest in publicising the achievements of the new sciences could, like the Encyclop´edistes, contribute to revolutionary change. So too, with equal inadvertence, could the religious and political bureaucracies which – internally divided, in doubt of their own powers, and apprehensive of fomenting public protest – came to oppose Diderot’s project. The Encyclop´edie’s fortunate success in its publication and distribution owed much to the hesitation and 179

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The new light of reason irresolution of its enemies. As Diderot would later discover, to his horror, his principal censor had been his own publisher, who needlessly expunged many passages in anticipation of offence to both the state and the church which they never had occasion to cause. 3

Censorship and the commercialisation of enlightenment

The expanding mid-eighteenth-century market for books published in French, and the lucrative profits to be gained by those who catered for it, were perceived, by authors, publishers, and also the state, as too considerable to be kept in check. While requiring legal recognition by way of a royal copyright system of privil`eges, the book trade in France comprised a growing, and ever more popular, feature of an economy whose main priorities and principles of taxation otherwise won it few friends among the more progressive arbiters of public opinion. The transformation of Le Breton’s original aim of 1745 – to produce a French translation of Chambers – to his subsequent enlisting, first, of the Abb´e Gua de Malves and later Diderot, to enlarge the work and bring in other contributors, all required the complicity of the authorities, not least because the work’s chief editor was then unfortunately detained in prison. Where Rousseau’s plaintive letters to the authorities failed to obtain his friend’s early release, the commissioned efforts of several magistrates, the keeper of seals, the lieutenant-general of police, and Chancellor d’Aguesseau collectively succeeded. Malesherbes would even claim later that Diderot and d’Aguesseau had jointly concocted the plan of the work. This launch of Diderot’s responsibility was to prove the first of several instances of an exemplary bond forged between certain milieux of the royal administration and the Encyclop´edistes which, in return, required of the philosophes, and especially Diderot himself, a number of formal concessions in the light of which political protection could be afforded to the exercise of his creative liberty. After 1750 the scrutiny of Malesherbes would be constant and his interventions frequent, thus ensuring the completion of the enterprise (Gordon and Torrey 1947; Grosclaude 1961). In 1752, following the Jesuit Journal de Tr´evoux’s denunciation of the Abb´e de Prades’s doctoral dissertation and his associated article ‘Certitude’ for the Encyclop´edie, Malesherbes covertly counteracted the official ban and threatened judicial proceedings, thereafter turning a blind eye to the various subterfuges of the philosophes in their defiance of the church and the parlements which sought either to suppress their work or to censor it. In 1759, following a campaign of vilification through newspapers and satirical pamphlets 180

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Encyclopedias and the diffusion of knowledge provoked two years earlier in the wake of Damiens’s attempt on the life of King Louis XV, Malesherbes once again brought legal proceedings against the Encyclop´edie to a halt. In January of that year the parlement of Paris condemned the work, while in May the royal council revoked the king’s privil`ege, but Malesherbes managed to save the enterprise by ensuring that the publication of subsequent volumes could proceed with tacit permission, the cancellation of full privil`ege actually serving the editors’ interest by sparing them the rigours of preliminary censorship which could have accompanied advance scrutiny of the text. The publishers’ principal argument, accepted by Malesherbes, and through him the crown, was that if the Encyclop´edie came to be published abroad, the French state and the persons gainfully employed in the work’s production would incur a substantial financial loss. Paper manufacturers, typographers, binders, booksellers, and other journeymen engaged in trades associated with the burgeoning industry of the printed word would become unemployed, while pirated editions produced in Geneva, Li`ege, Lucca, and even St Petersburg, where other workshops were eagerly awaiting their chance, would proceed to flood the French market. ‘The old institution of privil`ege . . . of its essence a manifestation of absolutism, was thus made to serve the cause of economic and ideological liberalism’ (Proust 1962, p. 76). In point of fact, the Encyclop´edie’s articles on theological themes were a good deal less incendiary than Bayle’s and especially Voltaire’s, while its philosophical and political essays were often remarkably tame if not downright insipid. Such threats to the established order which the work was perceived as posing only became visible in the light of criminal activities, like the attempted assassination of the king, which, according to its critics, irrupted when proselytes were stirred by its alleged irreverence for authority. The encyclopedic machine de guerre could then be portrayed as if it were a swirling tide of dissidence, gathering momentum on the horizon. But its ideological success, however that might be measured, was more prosaic. Not only were its philosophical advocates more resolute than its detractors; they also found an economy receptive to its charms because the authority of reason and public opinion which had already gained ascendancy in England and Holland in the previous century had now come, in the French-speaking world as well, to undermine the traditional hegemony of both church and crown. By 1765, seventeen folio volumes of text had appeared, completing the alphabet, but as yet none of the volumes of plates, nor the supplements, nor the index were available. In the fourteen-year interval since its launch 181

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The new light of reason an Anglophile Parisian publisher, Le Breton, who had undertaken a modest project of releasing a translation of a text produced several decades earlier to cater for what he hoped might be a latent public interest in learned essays on curiosities, had become enviably rich, realising a profit of two and a half million livres on a turnover of four million, gained from several thousand subscribers. In spite of his obligation to share those profits with his lesser known associates – Claude Briasson, Antoine David, and Laurent Durand – he managed, by the time of his death in 1779, to pass on one and a half million livres in his will, having multiplied his capital thirty times since his marriage almost forty years earlier. He not only aroused in almost equal measure the contempt of the ecclesiastical and civil powers, but also of the Encyclop´edistes themselves once they discovered that their trust had been abused. He not only gave impetus to the establishment of an intellectual class in Paris which has survived to the present day: he also unleashed the jealousy of his fellow publishers, who for a period of thirty years sought to emulate his success by bringing out their own editions of the Encyclop´edie, in Geneva, Leghorn, Lucca, Neuchˆatel, Lausanne, and Berne, so that by 1782 more than 25,000 sets of the work had been printed, those published outside Paris characteristically less costly because produced in a smaller format (Darnton 1979; Kafker 1976; Lough 1968, pp. 1–51; Merland and Reyniers 1979). All these operations, located entirely in Switzerland and Italy, were steered essentially by one man – Charles Joseph Panckoucke – who, after coming to Paris from Lille, contrived to create an editorial empire on a European scale that would only be achieved again by a few overweening publishing magnates of the twentieth century. Virtually a recruiting officer of scribblers and polygraphs in the academies, salons, ministerial boudoirs, and bookshops, he assembled an effective journalistic network to secure control of a number of francophone newspapers, including the Mercure, the Gazette, the Journal de Bruxelles, and the Journal de Gen`eve, and by bringing many second-rank Grub Street publicists together with luminaries like Voltaire and Buffon, he showed undiscriminating entrepreneurial talent of considerable aplomb. Under his direction, moreover, the imitations of Diderot’s and d’Alembert’s great endeavour were rendered in even more tranquil tones, fit for a still larger audience, for whom such daring as had marked at least the troubled publication of Le Breton’s edition meant nothing. In spreading the word of the age of Enlightenment, Panckoucke thinned and tamed it. First by republishing the folio edition, then by adding tables of contents and supplements, then by negotiating a quarto edition, and finally by launching in 1781 the still more massive Encyclop´edie m´ethodique, designed to encompass all that 182

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Encyclopedias and the diffusion of knowledge had come before and even surpassing it, Panckoucke managed to defuse the original script by diffusing it (Bowen 1969; Darnton 1979; Tucoo-Chala 1977). The unscrupulous commercialisation of the Enlightenment achieved in Panckoucke’s hands is amply demonstrated in the stratagems, false accounts, and projections adopted throughout all the contractual negotiations for the republication and improvement of the Encyclop´edie in which he was engaged (Darnton 1973). In its manifestation of the entrepreneurial spirit of capitalism, Panckoucke’s career was exemplary. By publishing his editions outside France he of course freed himself from such interference as the parlements and French clergy had sought to exercise over his Parisian precursor, while at the same time adding to the attractions of a work which could be portrayed as having barely escaped the clutches of aspiring censors. No less than Le Breton, moreover, Panckoucke had powerful official protectors in France as well, whose best endeavours helped bring his speculative ventures to fruition, smoothly oiling the path of volumes poised for prohibition by discreetly promoting them instead. If the crisis of 1759 had briefly obstructed the Encyclop´edie’s first publication, in Italy the republic of Lucca’s defiant refusal to register the papal denunciation endorsing the Paris parlement’s and French royal council’s censure, exhibited both Tuscan independence from the Holy See as well as an indigenous receptivity to progressive currents further afield (Rosa 1972). In England, with a more prevalent, if still restricted, tradition of freedom of the press, the public appeared to be more bemused than entranced by such Continental adventures, and no pirate edition of the text was contemplated after the 1750s. A notable letter to the Edinburgh Review by Adam Smith in 1756 made plain that, at least in enlightened Scotland, interest in the Encyclop´edistes’ daring and in the political and economic influence of their ideas could be readily mustered, but in England the 1772 translation of the Esprit de l’Encyclop´edie proved unsuccessful. The republication in five volumes of Chambers’s Cyclopedia between 1778 and 1786 occasioned no fresh references to the Parisian counterpart originally conceived in its image, while William Smellie, the editor of the first edition of the Encyclopedia Britannica (1768–71), judged the French Encyclop´edie unremarkably similar to other works whose authority he invoked. The Britannica, commissioned by the master printer Colin Macfarquhar and the engraver Andrew Bell, both from Edinburgh, was conceived for a much more limited market than the Encyclop´edie; in appointing Smellie, himself a journeyman printer with scholarly inclinations, they launched a three-volume work of reference, 183

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The new light of reason initially designed for publication in weekly instalments, on a scale whose modesty was beneath the horizons towards which Le Breton, Diderot, and Panckoucke sailed. Unsigned and often the work of Smellie himself, the great majority of the Britannica’s articles were less than fifteen lines long, the most substantial devoted to the subject of politics – the article ‘Parliament’ – inoffensively providing descriptions of legislative procedure. While readers of the article ‘Government’ might detect editorial hostility to the abuse of princely powers by contemporary governments in Continental Europe, they were more likely to notice the sympathy shown to latitudinarian theology in articles devoted to scripture and church history and, above all, they could consult its (by and large authoritative) surveys of medical, mathematical, and naturalhistorical topics which Smellie himself found most engaging. Not until 1814, when James Mill undertook to address the subjects of ‘Education’, ‘Government’, ‘Jurisprudence’, and ‘Liberty of the Press’ for the supplements to the fourth, fifth, and sixth editions of the Britannica did an Englishlanguage encyclopedia come to be read as a crusading work of political propaganda. Not until 1819–20, with the publication of Abraham Rees’s forty-five-volume Cyclopedia, could Anglophone subscribers purchase a work whose bulk rivalled that of the Encyclop´edie. Not until the middle of the nineteenth century were the encyclopedic battles of the Enlightenment becalmed, as epic series lying heavily on the bookshelves. The Encyclop´edie m´ethodique came by 1832 to embrace 158 volumes. Not to be outdone, the German CEkonomische Encyklop¨adie, launched in 1773, grew by 1858 to 242 volumes. In both countries, while the Encyclop´edie might be consulted, its influence remained circumscribed within intellectual and political contexts that lacked virtually all trace of the explosive character which it assumed in France (Kafker 1994). None of Panckoucke’s new editions was particularly faithful to the text of the original, whose intended meaning had in any case been obscured by Le Breton’s unauthorised and uncalled for expurgations of, as well as personal additions to, articles not only by Diderot himself, but also by Jaucourt, d’Holbach, Turgot, and Saint-Lambert. In a letter to the printers Le Breton justified his own cavalier editorial practices on the grounds that a catalogue of differing opinions should embrace both arguments supporting and arguments opposed to contentious propositions, thus, by way of introducing a freely selective appropriation of conflicting ideas, overruling Diderot’s professed wish to offer his readers coherent expositions of a philosophy shared 184

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Encyclopedias and the diffusion of knowledge in broad outline by the select members of his society of men of letters. The cuts and emendations introduced by Le Breton were the outcome, on the one hand, of what he took to be the technical imperatives of a work whose scale and format were subject to a calculus of profitability, but at the same time, on the other, they embraced a publisher’s assessment of fashionable taste, unencumbered, before the cult of the written word had come to be prevalent, by a need to respect his authors’ pronouncements to the letter. In Lucca much the same principles were adopted for local contingencies of a different kind by an editorial team assembled by Lorenzo Diodati, whose alterations laid emphasis instead upon the achievements of Italian scientists and philosophers, while also underlining, especially after the crisis of 1759, the extent to which Italy’s culture of enlightenment was politically moderate and theologically conservative, by contrast with that of France. The last tomes of the Lucca edition even embraced violent denunciations of Voltaire, Rousseau, atheism, materialism, and the radicalism of Parisian politics in the name of enlightened Catholicism and a spirit of reform, thereby purifying reprobate features of the original articles so as to refine their base metal and render it negotiable currency (Rosa 1972; Venturi 1971). The Leghorn enterprise, modelled upon that of Lucca but launched after the condemnations of Rome, was similarly committed to textual modifications, in this instance partly inspired by a desire to bring up to date a work of reference that had been conceived more than twenty years earlier. In each case the original character of the Encyclop´edie was filtered through a new lens, altered in the light of commercial interests which enabled the publishers to justify their employment of fresh crews of scholars with sufficient local knowledge to revise the text for new readers. With scientific and historical annotations in particular thus modified, but also incorporating numerous adaptations of cultural, legal, and political entries, the later transcriptions at once broadened the original text’s learning while tempering its tone. As Panckoucke observed in 1770 to another publisher in connection with his negotiations for a new folio edition to be published in Geneva, ‘We must not allow ourselves any impious boldness which might frighten the magistrates . . . The work will have to be written with . . . such wisdom and moderation as might even merit the endorsement of your government’ (Lough 1968, p. 85). Articulating different priorities for different readers, and progressively refracted and diffused by its successive editorial adaptations, the Encyclop´edie continued to be perceived as a useful instrument of change, but its thrust had been blunted. 185

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The new light of reason 4

The Encyclop´edistes and their readers

What might be termed the generational sociology of the work’s reception still requires detailed mapping, but if we assume that its authors were also its first readers, some rough impressions may be formed in the light of Diderot’s own article ‘Encyclop´edie’ (1755), expressing his ideal of a republic of letters, followed by his lament of 1768 to the effect that his contributors had changed their character and become trimmers. Initially the authors he and d’Alembert had assembled formed an open society bound by no ties of patronage, united instead by its members’ ‘sense of mutual good will’ and their commitment to the ‘general interest’, he claimed (Diderot 1992, p. 22). Later, as the work fell prey to the vicissitudes of circumstance, second-rate men of letters, prompted by interest and ambition, were conscripted to join experts of greater intellect and nobler zeal. Its first authors had been recruited not only on account of their skills, but frequently also because they were personally well known to, and sometimes close friends of, the editors. D’Alembert, turning to his acquaintances among natural scientists and mathematicians, invited Antoine Louis, Pierre and Louis Daubenton, and Louis Le Monnier. Diderot, calling upon the circles he knew of writers on the arts and society, hired Antoine Eidous, Franc¸ois Toussaint, d’Holbach, Turgot, and Rousseau. Luminaries of the republic of letters were conscripted by bohemian sleuths of the literary underworld, no less significant for being less known, who could in turn, as, for instance, did Louis Goussier, introduce their employers to their own acquaintances among artisans, engravers, draughtsmen, and typographers. Through such contacts was formed a major avenue along which the cultivated classes of the ancien r´egime could make common cause with the active and industrious urban population. Other ways were opened by fresh contributors brought in for each volume, constantly renewing the authors’ membership and, on account of their diversity, lending vitality to the enterprise as a whole.2 According to John Lough’s tabulation, the first volume was produced by twenty-two collaborators, of whom only six survived to see the work completed; seven new authors joined the team that produced volume two, among them d’Holbach and the redoubtable Chevalier de Jaucourt (alone responsible for more than one quarter of the entire text), three of whom stayed on to the end (Lough 1973). While after 1752 several contributors 2 For the contributors to the Encyclop´edie see: Kafker and Kafker 1988; Lough 1968, 1973, 1975; Proust 1962, pp. 9–43; 1965, pp. 78–105; Roche 1965–70, ii. On individual contributors: Hankins 1970; Morris 1979; Naves 1938. Estimates of the number of contributors have varied from 139 to 179.

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Encyclopedias and the diffusion of knowledge in holy orders thought it prudent to take cover, Diderot’s efforts to foment greater publicity brought billings for some of the pre-eminent writers of the age, such as Buffon and Voltaire, whose other agendas and large egos, however, left the Encyclop´edie graced by little more than their names. Punctuated by disagreements over editorial policy, which managed quickly to dispose of Voltaire but also came eventually to cost the services of d’Alembert, the work’s relentless rhythm and schedule of publication kept it continually in the public eye, its crises, however costly to its editors and authors, in fact enhancing its attractions to its purchasers and readers. From the academicians, who volunteered for glory’s sake, to the ‘Tartars’ who laboured for a wage, from Diderot’s own indentured service on behalf of a great cause, to the freelance but also full-time efforts of Jaucourt, the diversity of the Encyclop´edie’s contributors and their motives formed a prism of the cultural forces of their age. Contrary to claims once prevalent about their collective identity and ideology, they did not form a homogeneous vanguard of a rising bourgeoisie (Roche 1965–70, ii; cf. Soboul 1962). Of the 150 or so contributors whose identities have been established, only around 4 per cent belonged to the bourgeoisie, with another 4 per cent being of noble birth and around 8 per cent clergy. The great majority belonged to the open-textured world of talents, scholarship, and the arts, which afforded the possibility of either a literary career or positions in public service and administration. Their influence was exercised less by class allegiance or social mobility than through the permeable channels that literacy in an incipient commercial age made possible. For the political and religious forces of the ancien r´egime which did not welcome it, the most useful barrier against the work’s circulation was not censorship but its price. Few townsmen and virtually no peasants – still forming the overwhelming bulk of the population of France – could afford to purchase a set, even if inclined to do so; their access to the work could only be indirect. Little by little, however, as each fresh edition appeared, new segments of French and European society came to be conquered. The first, luxury, edition, was destined for wealthy readers, the elite of the capitals and major centres, court circles, and lay or religious libraries, if sufficiently rich and independent; the haute bourgeoisie was greatly conspicuous among the work’s subscribers if not its contributors. More than 2,000 copies were distributed in France and around the same number again throughout the rest of Europe, and it was these readers or institutions with deep pockets, whose faithfulness may have been due as much to their resolve to own a complete set as to their interest in its contents, that enabled the publishers 187

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The new light of reason to persevere despite their difficulties. The editions which appeared abroad multiplied this initial circulation nearly six times, with the Genevan folio edition winning French subscribers on much the same scale as the Paris text, thereby gaining access to a somewhat broader base of French society, while the Leghorn and Lucca folio editions penetrated wealthy and enlightened circles in southern Europe. The quarto and octavo editions, mainly intended for the urban middle classes, extended the Encyclop´edie’s influence virtually everywhere. From French subscription lists to the quarto edition, the extent of the work’s diffusion, facilitated by clever advertising and aggressive salesmanship on the part of publishers’ agents and booksellers who travelled throughout the kingdom, can be clearly traced. Subscribers proved more numerous in political and academic centres than in predominantly commercial or industrial towns, such as the Atlantic ports or textile centres of northern France. Wherever cultural sociability had long prevailed or had more recently taken root – within the administrative nobility, the intellectual clergy, and ‘notables’ such as officers, lawyers, physicians, and gentlemen of leisure among the ancien r´egime’s bourgeoisie – the Encyclop´edie acquired readers drawn to its aims on account of their professions or their interests. For two generations, from 1750 to 1789, the work’s audience thus widened, its readership reflecting and reinforcing the tastes and ambitions of classes already cutting new channels through the social landscape of France. In the same period those paths became progressively politicised. Just by virtue of its systematic classification of the arts in its prominently displayed chart of human knowledge, the Encyclop´edie broke with a long tradition of technical secrecy which had characterised the legacy of guilds and corporations, its pedagogical aims thereby highlighting the public benefits of innovation and invention, and the attractions of a society open to talents by contrast with venerable institutions’ stability and closure. Even the editors’ use of cross-references could be seen as subversive, in mounting oblique assaults upon theological certitude beneath and between the lines across several volumes, which astute readers could recognise as necessary in order to circumvent censorship. As Robert Darnton has remarked, ‘the widespread diffusion of the Encyclop´edies symptomized a widespread disposition to question the ideological basis of the Old Regime’ (1979, p. 540). But while the work’s themes and language occasionally articulated both the ideals and rhetoric of the French Revolution of 1789, it was not by way of the reception of its various editions that the tributaries which would feed that great flood came to be formed. 188

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Encyclopedias and the diffusion of knowledge 5

The political thought of the Encyclop´edie

Diderot’s own articles, ‘Art’ in volume i and ‘Encyclop´edie’ in volume v, illustrate not only his own but also his whole team’s attachment to the mechanical arts as instruments of the moral improvement of mankind. They assess the revolutionary impact of technological innovations and call for greater co-operation between specialists of different disciplines – more interpenetration of the theory and practice of science, and of liberal with mechanical arts – so that knowledge may be invested in applications which promote public welfare. The dissemination of such useful knowledge formed the most central objective of the Encyclop´edie. For to make intelligible the successive achievements of extraordinary individuals which constitute ‘the march of the human spirit’, as Diderot put it, is to enhance the quality of life of the general mass of mankind (Diderot 1992, p. 23). It shows the value of criticism and reveals how the authoritative precepts of one age become dead dogma to another, lifting the yoke of precedent and pointing the way towards reason (pp. 21–7). These ideas, elaborated in the article ‘Encyclop´edie’ in particular, recapitulate some of the themes of d’Alembert’s ‘Discours pr´eliminaire’ to the first volume, which complements Diderot’s account of the transmission of knowledge through signs, etymology, and language in general with an assessment of the revolutionary impact upon human history of science and invention. To that argument d’Alembert appended lengthy tributes to Bacon, Newton, Locke, and other eminent philosophers and scientists of the seventeenth and early eighteenth centuries, whose achievement, he claimed, had laid the foundations of the Encyclop´edie itself, launched at the highest point civilisation had yet attained. His distinction in this essay between the esprit syst´ematique of his own enlightened age and the esprit de syst`eme prevalent in the metaphysical cosmologies of Descartes, Leibniz, Spinoza, and Malebranche encapsulates the preference of the Encyclop´edie’s editors for British empiricist thinkers over their more abstract contemporaries in Continental Europe, and it was to become the leitmotif of Ernst Cassirer’s Die Philosophie der Aufkl¨arung (The Philosophy of the Enlightenment, 1932), still among the most influential modern interpretations of Enlightenment philosophy. The ‘Discours pr´eliminaire’ and the article ‘Encyclop´edie’ may together be regarded as comprising a manifesto of the age of Enlightenment as a whole, produced by the editors of perhaps its most seminal work. Each of these essays, moreover, draws attention to the philosophy of Rousseau, who, just prior to the publication of the first volume, had in his Discourse 189

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The new light of reason on the Arts and Sciences (1751) produced an account of the moral effects of civilisation which seemed to contradict the very purpose of the Encyclop´edie. In 1755, when the fifth volume was published, Diderot was still Rousseau’s closest friend, but he would soon have occasion to regret his encomium of a man whom he here asserts that ‘he never had the strength to hold back from acclaiming’ (Diderot 1992, p. 26). If the article ‘Encyclop´edie’ forms a part of his philosophy of history, Diderot’s more specifically political contributions concentrate instead on principles such as justice, authority, and natural right, illustrated with examples drawn most often from antiquity. After the crisis of 1752 deprived him of the services of a number of liberal theologians who had been responsible for material on the history of political thought, Diderot took over this subject himself, borrowing copiously from Sully, Fontenelle, Bayle, Gabriel Girard, Claude Buffier, and other sources, and relying above all on the political thinker whose authority throughout the first half of the eighteenth century was unrivalled – that is, Pufendorf. In the article ‘Cit´e’ he adopts Pufendorf’s formulation of the idea of the state as a corporate body entrusted with the collective will of its various members, and in the article ‘Citoyen’ he accepts Pufendorf’s distinction between the duties of man and those of the citizen, while nevertheless objecting to his preference for native-born as opposed to naturalised citizenship on grounds prevalent in ancient Athens but superseded by the more permeable entitlements offered in Rome (Diderot 1992, pp. 12–17). In the article ‘Autorit´e politique’ in volume i, Diderot subscribes to Pufendorf’s conception of the true source of authority, which must lie in the consent of the people themselves, rather than in nature or force. In relinquishing their liberty to their princes, the inhabitants of civil society act in conformity with right reason and so establish a common power in the public interest. This is the doctrine of the social compact, which binds citizens to the prince, but also princes to their subjects, limiting their authority, as Diderot conceived it, under conditions stipulated by natural law (Diderot 1992, pp. 6–11). The moral foundations of the state might thus appear to be without need of any theological framework. Yet, together with Pufendorf, he contends that subjects retain no right of resistance against the authority they have established, however despotic they might judge it, since they are bound by religion, reason, and nature to abide by their undertakings. Men should remain free in matters of conscience, Diderot observes in his article ‘Intol´erance’ in volume viii, since conscience can only be enlightened, never constrained, and violence merely renders a man a hypocrite (pp. 29–30). But 190

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Encyclopedias and the diffusion of knowledge he does not follow the anabaptists or Locke, who held similar views, in their suggestions that conscience and good faith may justify a right of resistance. The argument of ‘Autorit´e politique’ gave rise to no such implications, though it excited fierce hostility, in the Journal de Tr´evoux and elsewhere, mainly on the part of advocates of the divine right of kings. To allay any misunderstanding, Diderot added an erratum to the article, which appeared in volume iii, to the effect that subjects’ consent to the rule of their princes does not contradict but rather confirms the proposition that real authority stems ultimately from God (pp. 11–12). Pufendorf had put forward his account of the popular and contractual foundations of monarchy in conjunction with a theory of human nature and a speculative history of the origins of civil society. Much persuaded by the Hobbesian doctrine of man’s fundamental insecurity and selfishness, he nevertheless maintained that Hobbes had been mistaken to suppose that man was by nature a solitary creature whose ambitions incline him towards war, since, on the contrary, the weakness of savages must have led them to seek survival through association with their neighbours, their selfish sociability prompting them to establish and accept the regulations of civil law. In his article ‘Droit naturel’ (Natural law), published in volume v, Diderot pursues much the same critique of the idea of natural conflict, reproaching Hobbes, whom he portrays as a ‘violent interlocutor’, for supposing that each person’s passions must bring ‘terror and confusion to the human race’. The Hobbesian thesis is either insane or evil, he observes, ‘for man is not just an animal but an animal which thinks’, capable of exercising his reason in accordance with justice (Diderot 1992, pp. 18–19). In his Suite de l’Apologie de l’abb´e de Prades of 1752, forming his own defence of a maligned contributor to the Encyclop´edie, Diderot had already remarked that the pure state of nature was an e´tat de troupeau – a barbarous condition of men living in herds, each individual motivated by fear and his natural passions alone. But only a contemptible Hobbesian could suppose that the unlimited power of princes had been established as a remedy for man’s original anarchy, since the passage of the human race from an e´tat de troupeau to an e´tat de soci´et´e polic´ee – from its natural state to the state of civil society – had come about just because of men’s recognition of their need to subject themselves collectively to laws whose beneficial effect was manifest to them all. In ‘Droit naturel’ Diderot considers how selfish individuals, motivated by private interest, can form such agreements. Before the institution of governments, he claims, justice can only be settled by what he describes as the tribunal of mankind as a whole. For although ‘private wills are suspect . . . 191

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The new light of reason the general will is always good’, and each of us partakes of that general will by virtue of our being members of the human race, prescribing both our fundamental duties as well as our inalienable rights (Diderot 1992, pp. 19– 20). It was in this way that Diderot introduced his idea of the volont´e g´en´erale, a term which had achieved some currency in the theology of Malebranche in the late seventeenth century and had been taken up again from time to time in the eighteenth, but which had been of scant significance in the history of political thought before the publication of the Encyclop´edie. In his own article ‘Economie politique’, published in the same volume, Rousseau employed the term himself for the first time, with a cross-reference to Diderot’s article, already cited in the original manuscript, which has survived (Rousseau 1997b, p. 7; Wokler 1975, p. 71). Here, in his sole political contribution to the Encyclop´edie, deeply inspired by Plato’s Laws, Rousseau defines the volont´e g´en´erale as the will of the body politic as a whole, serving as its source of laws and its standard of justice, although his ascription of that principle to the whole of humanity retains some resemblance to the argument of Diderot’s ‘Droit naturel’. Later, in The Social Contract (1762), he was to attribute a very different meaning to the concept, insisting that it could only be realised within, and never outside, the state. Diderot conceived the law of nature to be a rational principle of common humanity, which restrained the selfishness of individuals and made the establishment of civil society both necessary and possible. Many philosophers of natural law had put forward similar notions before, but from his references and allusions to both the De jure naturæ et gentium (On the Laws of Nature and Nations, 1672) and the De officio hominis et civilis (On the Duty of Man and Citizen, 1673), it is clear that his account was principally indebted to Pufendorf alone. That debt, however, was by and large indirect, since Diderot drew most of his Pufendorfian principles not from their original source but from Brucker’s Historia critica philosophiae, which he consulted time and again, many of his own contributions on subjects drawn from that work – which accordingly must be regarded as one of the mainsprings of the whole Encyclop´edie – amounting to little more than plagiarism. Yet while the article ‘Hobbisme’ is an almost literal translation of Brucker’s account of Hobbes, it includes a postscript of Diderot’s own conception, comparing the system of Hobbes with that of Rousseau, to the detriment of both thinkers (Diderot 1992, pp. 27–9). According to Diderot, mankind is neither simply naturally good nor simply naturally wicked, since goodness and evil, together with happiness and misery, are finely balanced in human nature. If Hobbes had falsely supposed that men are by nature vicious, Rousseau 192

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Encyclopedias and the diffusion of knowledge had been equally wrong to believe that they always become so in society. For Diderot, virtue and vice were each natural and social, and man was thus at once impelled and enabled to form civil associations which brought both benefits and harm to the human race. A Pufendorfian perspective of a society of selfish agents could therefore be invoked as a corrective not only to Hobbes but to Rousseau as well. With the publication of his Theory of Moral Sentiments in 1759, Adam Smith made such sceptical principles central to his philosophy and later came, in his Wealth of Nations of 1776, to envisage the place they occupied among the necessary foundations of commercial society. It was Rousseau, however, rather than Smith, who lent weight to Diderot’s Pufendorfian political theory – and that by way of refutation. For just as Diderot had attempted to rebut both Hobbes and Rousseau in his article ‘Hobbisme’, so Rousseau, in the draft of The Social Contract known as the Geneva Manuscript, sought to challenge Hobbes and Diderot together (Rousseau 1997b, pp. 153–61; Wokler 1975, pp. 90–110). Arguing against ‘Droit naturel’, he also employed the dialectical approach of the article ‘Hobbisme’, since he judged Hobbes correct to surmise that outside civil society there could be no agreed principles of law constricting our natural rights, but wrong to imagine that the exercise of such rights unavoidably led to conflict. The idea of natural right was thus a chimerical concept, he claimed, because it ascribed a moral rule to a state of mere licence, though Diderot had rightly perceived that even in their natural state men could still live in peace. As an alternative to each doctrine Rousseau advanced a theory of benign but amoral human nature, transformed either for better or worse by the establishment of civil society. Both his philosophy of history and his theory of the social contract thus address themes brought to his attention by Diderot’s contributions to the Encyclop´edie. Readers who sought information about the meaning of natural right and the foundations of political authority had access not only to Diderot’s and Rousseau’s pronouncements in these articles but also to the views of Boucher d’Argis in another article on ‘Droit’, published in volume v, as well as to those of Jaucourt on ‘Gouvernement’ in volume vii, or, within the broader context of moral philosophy, the definitions of ‘Int´erˆet’ supplied by the Marquis Jean-Franc¸ois de Saint-Lambert in volume viii. While justifiably aggrieved at the liberties taken by his publisher with the text he supplied, Diderot himself promoted the work’s multiplicity of voices – of deism, materialism, and even orthodoxy in theological matters, for instance, or liberalism and mercantilism in political economy. His choice of diverse 193

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The new light of reason authors and his provision to them of a porous vessel designed to promote freedom of thought thus had the same effect of tempering any alleged dogmatic character of the whole enterprise as did its publishers’ self-censorship. In his own article ‘Ecletisme’, itself recapitulated from Brucker, Diderot commends the heterodox perspective which imbues the character of his work as a whole. Fashionably radical points of view expressing ideals of civil liberty and free trade, and limiting the powers of a nation’s representatives in the light of its people’s imprescriptible rights, were incorporated in the long articles on national revenue, ‘Vingti`eme’, mainly by Etienne Damilaville, and on representation, ‘Repr´esentants’, by d’Holbach, in volumes xvii and xiv, respectively. But the Encyclop´edie was not throughout all of its entries imbued with the gospel of a new age, and ironing out the diverse perspectives it incorporated formed no part of its editors’ endeavour. For that reason above all, there would be little point in attempting to assemble even the broad outlines of the French Revolutionary Declaration of the Rights of Man out of its pages. Its contributors’ occasional criticisms of monarchical institutions remained moderate, seldom more severe in tone than the article ‘Oppresseur’, from whose anonymous author no inference about any contemporary regime could be drawn. Subjected to their criticism were not so much the religious and political institutions then prevalent in France as the trappings of all ideological systems which obstructed the advancement of knowledge and the free exchange of ideas. Inspired by images of a harmonious society in which particular interests could be reconciled to the general interest, and intent upon providing philosophical, scientific, and technical solutions to social and political problems, the Encyclop´edistes managed to command the attention of many of Europe’s traditional elites, the tasks they set themselves facilitated by the commercialism of their publishers, whose ambitions enabled their enterprise to conquer a wider market than had been gained or even sought by the editors of any major works of reference before. Perhaps the most paradoxical feature of their triumph, rendering its cultural and political impact deeply ambiguous, turns around the fact that neither the intellectual speculation which informed the Encyclop´edie, nor the financial speculation which saw it to press and ensured its diffusion, could have achieved its authors’ or patrons’ objectives without the ministrations of progressively minded civil powers at the very heart of the ancien r´egime.

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7 Optimism, progress, and philosophical history hay dn mas on

1

Optimism

From the early seventeenth century a new age of rationalism sprang up, with Descartes as its main progenitor, and Spinoza and Leibniz as epigones. Since Descartes contributed so heavily to establishing confidence in reasoning as a reliable human instrument, it seemed useful to apply critical enquiry to the ancient mystery of evil and suffering. Did theodicy, that branch of philosophy concerned with the justification of God’s goodness and the refutation of arguments based on the existence of evil, still remain a valid approach? The traditional Christian explanations – the Fall and the redemption, original sin, eternal reward and punishments – no longer appeared to suffice as answers to the conundrums posed by the new philosophies. The basic problem was not new. Epicurus had stated it centuries earlier: if evil exists then God must be either malevolent or impotent. No-one reformulated this dilemma with greater trenchancy than Pierre Bayle who, in his voluminous Oeuvres diverses (1727–31) and even more so in his Dictionnaire philosophique et critique (1697), was constantly engaged in forcing rationalist thinkers into a corner. Why, in a God-given universe, is mankind exposed to disease, hunger, and pain? Why do men have any inclination to evil? God must have foreseen, and therefore wished to prevent, human sin. It cannot be any justification to argue that God permitted sin simply to demonstrate his own powers. Such a God would be odious. Free will can scarcely be deemed a desirable gift if it can lead to everlasting damnation. These powerful arguments, developed most notably in the Dictionary articles ‘Manich´eens’ and ‘Pauliciens’, led Bayle to the conclusion that every attempt to explain evil by rational means must end in either deism or total scepticism. Blind faith independent of all ratiocination, he claimed, was the only viable answer. Bayle’s views quickly set him at odds with rationalist theologians like Jean Le Clerc and Isaac Jacquelot, and right up to his death he maintained a 195

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The new light of reason lively debate with them. But it was Leibniz’s response to Bayle in his Essais de th´eodic´ee (1710) which especially affected the course of debate. These essays represented a far-reaching refutation of Bayle’s arguments. Leibniz feared, contrary to Bayle, that scepticism would ensue not from rationalist explanations but rather from Bayle’s corrosive attacks on the powers of human reason. In Leibniz’s view, reason was essentially constructive, and he saw no basic conflict between reason and faith. He himself made no attempt to deny that evil existed, but he saw it as an absence, like cold and darkness, a negative, a privation of good. Evil is an unavoidable element in our universe, but we must accept that God could not have created a better one than he did, bound as he necessarily was by eternal truths and the principle of sufficient reason. This world is not designed uniquely for human happiness; that is only a part of God’s plan. Nature necessarily contains and preserves the utmost order consonant with the utmost beauty and truth, and God cannot, simply to lessen evil, disturb the whole natural order. In Leibniz’s view, everything follows from the basic premise of God’s infinite goodness and wisdom. Hence this is the best of all possible worlds. ‘One must believe that it is not permitted to do otherwise, since it is not possible to do better’ (pt ii, para. 124; Leibniz 1951, pp. 197–8). Leibniz’s perspectives on optimism were expounded and developed by his disciple Christian Wolff, who attracted the keen interest of, amongst others, Voltaire’s fellow scholar and mistress Madame du Chˆatelet. In 1740 she brought out her Institutions de physique, where she expressly developed Leibniz’s metaphysical opinions as she had discovered them in the works of Wolff. By this time Voltaire had himself been reading Wolff in the company of Madame du Chˆatelet, although his disaffection with metaphysical thinking in general was already clear. Metaphysics, he wrote to Frederick of Prussia in 1737, consisted of two things, the first what all men of common sense know, the second what they will never know. His reaction to Leibnizian optimism was ambivalent from the start, though he did not initially express outright hostility. The term ‘optimism’ seems to have made its first appearance in French in 1737, in a review of Leibniz’s Theodicy by the Jesuit periodical, the M´emoires de Tr´evoux, where the author defined it as a theory according to which ‘the world is an optimum’. From 1750 we find optimisme in the dictionaries. But the optimist philosophy did not only derive from Germany. England too had made an important contribution through Alexander Pope’s Essay on Man (1733–4). It seems likely that Pope owed some of his opinions to his acquaintance with Viscount Bolingbroke; certainly Pope acknowledged 196

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Optimism, progress, and philosophical history a debt.1 Voltaire, a keen admirer of Pope’s Essay, agreed that Bolingbroke played an important part, but reproached the poet for neglecting to mention the third earl of Shaftesbury as an inspiration (Voltaire 1964a, ii, p. 139n). Bolingbroke’s theist beliefs reveal his satisfaction with the Creation, the work of a God both good and wise, in such writings as his Reflections upon Exile, where he attacked those who criticised divine Providence; he himself approved of the Great Chain of Being, whereby everything in the cosmos is united in one great design (Fletcher 1985, pp. 9–12). Shaftesbury’s own optimistic views had appeared in print even before Leibniz’s Theodicy, as Leibniz himself acknowledged, while making clear that he had not read them until after the composition of his own work (Barber 1955, p. 118 n. 4). Shaftesbury had denied that the world was defective; on the contrary, its beauty was the result of contradictions, since universal harmony comes from a perpetual struggle between elements and creatures. When annotating his reflections on the Lisbon earthquake, Po`eme sur le d´esastre de Lisbonne, in 1756, Voltaire was in no doubt that Pope had derived his system from Shaftesbury (Voltaire, 1877–85, ix, p. 465n). Whatever its inspiration, it was Pope’s Essay which engaged public attention both in England and on the Continent, the first French translation appearing in 1736. More particularly, it aroused Voltaire’s admiration, the philosophe describing it as the most beautiful, useful, and sublime didactic poem ever written in any language (Voltaire 1964a, ii, p. 139). Pope’s version of theodicy, situating man in the universal scheme of things, argued that happiness is ‘our being’s end and aim’ (epistle iv). Man has his appointed place in the Great Chain of Being, which reaches ‘from Infinite to thee, / From thee to Nothing’ (ep. i). But it is not for man to comprehend the universe: ‘know then thyself, presume not God to scan’ (ep. iii). The famous lines which close the first epistle trenchantly sum up Pope’s opinion on the question of evil: All Nature is but Art, unknown to thee; All Chance, Direction, which thou canst not see; All Discord, Harmony not understood; All partial Evil, universal Good; And, spite of Pride, in erring Reason’s spite, One truth is clear, whateve r i s , i s ri g h t .

In brief, evil was an illusion. Pope, like Leibniz, simply denied its existence. His aim was above all to console humanity and to celebrate what was good 1 Observations, Anecdotes, and Characters of Books and Men, cited in Fletcher 1985, p. 7. See Spence 1966.

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The new light of reason in the world. Leibniz too had wished to reassure his readers, but he had felt that this could be done only by arguing from the logical necessity of evil. Both writers in the end advocated resignation to the human lot and trust in the divine order. Nonetheless, Pope’s work was not influenced by Leibniz, of whose writings he was ignorant, just as the sources of his inspiration, Bolingbroke and Shaftesbury, were also independent of the German philosophy. That there were two separate strands indicates the extent to which the problem of evil was of topical concern in the early eighteenth century. In Germany Wolff’s exposition of Leibnizian optimism ensured its continuing success. Optimism fitted in well with the new advances in science, a point demonstrated by Leibniz himself, who was interested in physics and metaphysics alike. From 1733 onwards the appearance of the Essay on Man led to Pope’s name being generally associated with that of Leibniz in the debate. In 1755 the Berlin Academy ran an essay competition whose topic was ‘an examination of Pope’s system, contained in the proposition “Whatever is, is right”’. The winning entry represented an attack upon Leibniz. In France, too, general interest remained high as the question attracted contributions (though usually hostile) from La Mettrie, Condillac, Maupertuis, and the Jesuit M´emoires de Tr´evoux (see Barber 1955). By the 1760s, however, the doctrine of optimism had largely run its course. Such a change in mentalit´e inevitably had complex causes, but three were of some particular importance: the Lisbon earthquake (1755), the Seven Years War (1756–63), and Voltaire’s Candide (1759). The Lisbon disaster proved a profound shock to European opinion, no great European city ever having hitherto suffered so cataclysmically. Probably 10,000–15,000 people perished, and the central part of the city was gutted by fire. The earthquake aroused a widespread response throughout Europe (Franc¸a 1965). In Germany it was studied by Kant and commented upon later by von Humboldt and Goethe; Samuel Johnson, Oliver Goldsmith, and Thomas Gray wrote about it in England; while in France Voltaire was first upon the scene with his Po`eme sur le d´esastre de Lisbonne, composed within ten days of his hearing the news. Here at last Voltaire turned decisively against optimism, as a theory both chimerical and cruel when set against so much suffering. It was the passive fatalism inherent in the doctrine that particularly aroused the philosophe’s anger, and both Pope and Leibniz were subjected to criticism in his attached preface and notes. But, while Voltaire could still praise the high moral quality of the Essay on Man, there was no moderation in his treatment of Leibniz. If the stupid optimist Pangloss in Candide is a German, there can 198

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Optimism, progress, and philosophical history be little doubt that his very nationality helped to reinforce Voltaire’s devastating attacks upon such Leibnizian concepts as the principle of sufficient reason. Candide was the ultimate assault upon optimism. Voltaire had already agonised over the problem of evil in his poem on the earthquake, which essentially consisted of a prolonged question, Why? The poem represented a protest, couched in urgent terms, not only with regard to the earthquake itself, but even more so against the insulting justifications of it by the optimists. By the time of Candide its author had internalised that passion and transmuted it into irony and satire. The conte probes with remorseless clarity the unclarity of human behaviour and reasoning, nowhere more evident than in the ridiculous antics of Dr Pangloss. By its elaborate use of ordered antithesis and balance it shows up the disorder of a cosmos that, in Voltaire’s words elsewhere, ‘exists on contradictions’. Candide was immediately and hugely successful, running to seventeen editions published in four different countries and probably amounting to 20,000 copies, before the year of publication was out. Despite the rejoinders by orthodox apologists, the tale played an important part in reshaping mental attitudes to the doctrine that ‘all is well’. But the reception of the conte must also be set in the context of the Seven Years War, which brought so much suffering to the heart of Europe. According to Frederick the Great, half a million Prussians died. France lost vast territories overseas and control of the high seas. Furthermore, the settlement of the War left an uneasy stalemate. If optimism can be seen as ‘in essence an apologia for the status quo’, its demise fitted in well with the darker mood, complementing the decline of sanguine hopes that science and reason might guarantee human progress (Willey 1965, p. 48). Kant’s immediate response to the Lisbon earthquake took the form of papers reviewing the theories of earthquakes, while he noted somewhat complacently that, as part of the natural process, they are to be endured, and even in some respects welcomed. But later in life Kant would leave all such theodicy behind him as showing the limitations of theoretical reason in the field of speculative metaphysics. 2

Progress

Voltaire had seen clearly the ultimate paradox about optimism: it was inherently pessimistic, because it contained the seeds of fatalism. An ‘apology for the status quo’ cohered ill with an age that, for all its reservations, held to a general belief in the capacity of human beings to achieve progress. 199

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The new light of reason John Locke’s Essay concerning Human Understanding (1689) provided the basic philosophical groundwork. Locke maintained that our knowledge of the outside world was entirely acquired from sensory experience. At birth the human mind was a blank sheet, and morally neutral; Descartes’s theory of innate ideas was firmly rejected. As we mature, our sense-impressions, combined with our capacity for reflection upon them, give us the necessary information for our ideas and consequently for our language. Locke sought to understand man as a natural object, explicable by the scientific methods of what we should now call psychological observation. The mind can be as much a source of empirical investigation as the stars or the theory of gravitation. Therefore, since we derive our knowledge of the world entirely through the senses, we should logically be able to go on continually enhancing our awareness by the addition of ever more such contacts, provided they are controlled by our reflective powers. The greater our experience, the more enlightened and the more moral we should be. Voltaire led the way in arguing that Locke was the first thinker to write a history (as opposed to a roman or novel) of the mind (Voltaire 1964a, letter 13, i, p. 63). The English philosopher’s approach opened up the possibility of improving the quality of human consciousness and its interaction with the environment. Since the environment was seen to play such a vital role, it became important to help the mind to profit from what the senses received; the fundamental value of education was a logical corollary. No-one exploited this ‘sensationalist’ doctrine more fully for educative ends than Claude Helv´etius. For the French philosophe, reflection was subordinated to the external impact on the senses. In De l’esprit (1758) and yet more so in De l’homme, published posthumously in 1772, Helv´etius asserted that mankind was motivated at heart by the love of pleasure and fear of pain. Thus human nature, morally neutral in its essence, is disposed towards virtuous conduct only if the social milieu controls it by the use of agreeable incentives or disagreeable disincentives. This can be achieved by the establishment of laws that channel rather than contradict natural impulses and operate in conjunction with self-love, which is the only sure basis for human behaviour. It is in order to ensure that self-love is enlightened that education becomes of prime importance. Knowledge, for Helv´etius, is necessarily related to happiness, just as self and society are naturally in harmony. The educational system which he envisaged stood in opposition to the traditional teaching of the Jesuit colleges, based on theological principles and the study of Latin. Instead he calls for a modern curriculum, taught in the vernacular and involving the study of physics, history, and mathematics: a secular 200

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Optimism, progress, and philosophical history system intended to raise up citizens free of religious ties, and adapted to modern techniques and professions. It was De l’homme which, following the general thrust of De l’esprit, concentrated more particularly on education. Helv´etius boldly claimed that human talents and virtues are the product not of one’s basic nature but of how one is educated. Man is born ignorant, but he becomes a fool through bad teaching. The reason for intellectual inequality is to be found not so much in our different physical endowments as in the kind of schooling that people have received. Nor does ‘education’ simply mean schooling; used by Helv´etius in the classical sense, it starts at birth and with the impact of surrounding objects upon us. His philosophy of education in De l’esprit and De l’homme was to inspire much of James Mill’s argument in the essay on the subject of ‘Education’ which he drafted early in the nineteenth century for the Encyclopedia Britannica, and through Mill it was to become a source of English utilitarianism. Since Helv´etius aimed to increase human happiness through a better knowledge of our true nature, morality became a science of great social utility if it was linked to legislative and political direction. Religious sanctions are replaced by a concern for communal welfare. But not all the philosophes took the implications of sensationalism as far as Helv´etius. For him – as he put it in a passage of De l’esprit inspired by Locke, taken up by Quesnay in the article ‘Evidence’ for the Encyclop´edie and challenged by Rousseau in Emile – ‘to feel is to judge’; there is no qualitative difference between sensation and thought. Diderot, by contrast, himself quite as much a materialist as Helv´etius and equally indebted to the Lockean heritage, believed that there was a gap between pure sense-impression and judgement. In his view, the mind is not wholly dependent on the senses; comprehension is more than just feeling. Diderot stressed rather the variable factor of individuality, thereby rendering more concrete the abstract concept of man adopted by Helv´etius. In Diderot’s view human beings were not so simply malleable; the enigmas of human aberration, energy, and genius remained. But like Helv´etius he laid emphasis upon the need for, and the possibility of, greater enlightenment, as in his own article ‘Encyclop´edie’ in the great work of that name, where Diderot makes clear that the whole aim of the Encyclop´edie was to ‘change the common way of thinking’. Not all the philosophes were as sanguine as Helv´etius. Even Diderot was all too conscious of how easily one could slip back to barbarism. The expansion of trade and the development of luxury might well lead to corruption. Like many contemporaries he saw world history as cyclical, the fact of growth inevitably entailing a future decline. Progress towards enlightenment could 201

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The new light of reason never be a straightforward linear matter. Diderot’s exhortations to action, though based on a sincere hope for the future, were tempered with scepticism. This darker side to the general belief in progress by Enlightenment thinkers was conclusively demonstrated in Henry Vyverberg’s classic study Historical Pessimism in the French Enlightenment (1958). Few philosophes were exempt from doubts about human betterment. Fontenelle saw how history provided ample evidence of passions and whims deflecting mankind from moral improvement. Montesquieu’s L’esprit des lois (The Spirit of the Laws, 1748) is concerned with possible reforms but, like his earlier Lettres persanes (Persian Letters, 1721), reveals a fear of decadence. Book viii of L’esprit des lois is entirely given over to a discussion of how corruption of government in all its various forms comes about. To call the Enlightenment period the ‘age of progress’, as was once common practice, would be dangerously simplistic. Yet there is no denying the hope of progress that was felt virtually everywhere, albeit often cautiously and beset by apprehensions of danger on every side. For all his scepticism about human nature, Fontenelle believed firmly that experience was the sole source of human knowledge, and also that human error was useful because its elucidation led to truth. Helv´etius’s materialistic beliefs were similar to those of d’Holbach, who took the line that when religious tyranny had been crushed and society rebuilt on a firm system of morality informed by education a better world would dawn. The very system of determinism to which he held fast assured d’Holbach, as it did Helv´etius, that progress was practically inevitable. Human reason, once freed from theological prejudice, must necessarily seek out the truth. No-one presented the case for systematic human improvement more comprehensively than Condorcet, whose Esquisse d’un tableau historique des progr`es de l’esprit humain (Sketch of an Historical View of the Progress of the Human Mind, 1795) was written, ironically, during the French Revolution, at a time of mounting personal unpopularity and stress for its author, which was to end with his death as he tried to escape from capital punishment, to which he had been condemned by the Jacobins. In the Esquisse Condorcet traces the development of civilisation through nine ages, from earliest times to the present day, and ends on a confident prophecy that the tenth and future epoch will, through the spread of scientific progress, move ever forward to greater enlightenment, equality, peace, and justice. This evolution towards perfectibility was both certain and unlimited; progress for Condorcet had become virtually a religion. Indeed, he has been called one of the ‘prophets 202

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Optimism, progress, and philosophical history of Paris’ (Manuel 1962), and in his secular faith Condorcet can be aligned with nineteenth-century writers like Saint-Simon, Fourier, and Comte. Somewhat earlier, Turgot had already expounded his own theory of progress in a famous discourse delivered at the Sorbonne in 1750 while he was still a young man. Turgot too conceived great hopes of the future; but the way he couched them at this time painted a more balanced picture: Empires rise and fall . . . Self-interest, ambition, and vainglory continually change the world scene and inundate the earth with blood; yet in the midst of their ravages manners are softened, the human mind becomes more enlightened . . . and the whole human race, through alternate periods of rest and unrest, of weal and woe, goes on advancing, although at a slow pace, towards greater perfection. (Meek 1976, p. 41)

This steady accumulation of knowledge, based on Lockean sensationalism, is the ultimate assurance of progress. Whereas perfectibility was denounced by Rousseau in his Discourse on Inequality (1755) as a tragic desire in mankind, it represented for Turgot the foundation for growth and diversification. Arts and sciences develop from human needs and experience. But though the sciences, dependent on a quantitative knowledge of nature, are infinitely expandable, the arts had already reached their pinnacle under the Emperor Augustus. Turgot thereby combined a modernist belief in progress and movement with an exemplary classical aesthetic, in a manner characteristic of many other thinkers of his age. Basically holding to a deist belief in a providential universe, he attempted in his own way to solve the problem of theodicy and to give a meaning to history independent of divine rewards and punishments (Manuel 1962, p. 46). In this general picture of reformist attitudes one exceptional figure must not be overlooked: Vico, largely unread in his day but fully recognised in ours. Vico rejected the Baconian argument that the accumulation of knowledge led to progress. In his view this opinion sprang from a false analogy drawn between history, essentially based on subjective factors, and the objective methods of the sciences, whose laws operated without reference to human will and purpose. Historical change depended on language, myth, poetry, religion, and jurisprudence, all phenomena deriving from man’s creative and often irrational drives. Hence social development is organic, not linear, each culture possessing structures valid within its own context. Though Vico stops short of the nineteenth-century concept of le devenir (becoming), his work is a clear anticipation of it, ‘the whole doctrine of historicism in embryo’ (Berlin 1976, p. 38). 203

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The new light of reason 3

Philosophical history

Generally speaking, the concept of progress was the basis of historical writing in the eighteenth century. If the past shows human development, it must be the historian’s task to trace the stages. During the age of Enlightenment a philosophy of history began to emerge. In the preceding century the classic view of world history had been set forth in Bossuet’s Discours sur l’histoire universelle (1681). This survey of the past, from man’s origins to Charlemagne, was composed with the intention of demonstrating the providential hand of God in human affairs. Since, for Bossuet, God directs all hearts and all nations, the notion of chance or fortune in historical events is utterly fallacious. More specifically, this is a Christian universe. In that perspective, the history of the Jewish people acquired a special importance because it prepared for the coming of Christ. The philosophical historians of the eighteenth century found this kind of teleological view unacceptable. Instead, history now had to be seen in a purely secular way, determined by causes explicable in terms from which God has been removed. It took on the aspect of a physical science, from which one could hope to deduce significant laws and principles. Societies were seen to evolve not because of divine intervention but because of their own inherent structures. No-one addressed himself more attentively to a study of such patterns than Montesquieu, both in the Consid´erations sur les causes de la grandeur des Romains et de leur d´ecadence (Considerations on the Causes of the Greatness and Decadence of the Romans, 1734) and more comprehensively in The Spirit of the Laws. The former work shared Bossuet’s belief that fortune does not rule the world, but the reasons advanced to explain that view are quite different. There are, Montesquieu claims, underlying causes which preside over the establishment, maintenance, or ruin of a particular form of government, and all seeming accidents are subject to them (ch. xviii; Montesquieu 1965, p. 169). These causes, whether physical or moral in nature, become the subject of prolonged scrutiny in the Spirit of the Laws – so much so that, although not primarily a historical text, the work established itself as of crucial importance to Enlightenment historiography. The relationships elucidated by Montesquieu between political power under diverse forms of government, and such fundamental aspects as the religious life, manners, laws, and climate of a particular country, encouraged historians to banish metaphysical explanations from their work, along with the gratuitousness of chance occurrences. Henceforth it became feasible to seek out a general order underlying and accounting for change. 204

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Optimism, progress, and philosophical history Montesquieu thereby helped to pave the way for the great historical works of the century, by Hume, William Robertson, and Edward Gibbon in Britain, and Voltaire in France. Hume’s History of England (1754–62) was a six-volume work that began, paradoxically, with the Stuarts but eventually unfolded backwards to 55 bce so as to set the more recent British monarchy in perspective. Chapter i made clear the author’s view of history in general. Revolutions are so capricious and cruel that ‘they disgust us by the uniformity of their appearance’. The only sure ways of research by nations into their past lie in considering ‘the language, manners, and customs of their ancestors’. Hume’s profound scepticism about metaphysical truths did not inhibit him from intellectual perseverance where a ‘science of man’ might be developed. In consequence his readers were offered ‘the first genuinely political history of England’, in which civilisation, in terms of law, customs, religion, and culture, is constantly interrelated with political behaviour, as Montesquieu had also described (Phillipson 1989, p. 139). Robertson’s History of the Reign of Charles V (1769) is somewhat overshadowed when set beside the work of Hume and Gibbon. Yet its preface, entitled ‘A View of the Progress of Society in Europe’, is an exemplary Enlightenment statement of how Europe had moved from the darkness of the middle ages into light through its adherence to reason. The first chapter, on ‘Interior Government, Laws, and Manners’, indicated once again that in this development cultural matters had their place alongside political. The progress of science, though circumscribed, ‘may be mentioned, nevertheless, among the great causes which contributed to introduce a change of manners into Europe’. So too with commerce, which ‘did not fail of producing great effects’, improving men’s manners, uniting them, and disposing them to peace; Montesquieu’s influence with regard to these themes was explicitly acknowledged. Along with this heightened sense of an internal dynamism in human affairs went an increased meticulousness by historians in their use of sources. The veracity of facts became an essential aim. This development owed much to sceptical historians of an earlier age, and in particular to Fontenelle and Bayle. Fontenelle’s Histoire des oracles (1686) was a rationalist critique of the human propensity for error, summed up succinctly in the famous anecdote of the golden tooth. In Silesia in 1593 a seven-year-old boy’s second teeth had included one such, inspiring scholars to a learned debate with many diverse theories on its significance – until a goldsmith thought to examine it and found that the gold had been skilfully applied. The lesson Fontenelle derived from this tale was simple and direct: ‘Let us 205

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The new light of reason make quite sure of the fact, before concerning ourselves with the cause’ (ch. 4). Bayle, for his part, sought to free historical evidence from the tenacious hold of prejudice. People believed false stories because they were mentally lazy and simply followed fashion or long-established tradition; or were polemically inclined, or overwhelmed by deceit, or vanity, or passion. Few historians escaped the many pitfalls and consulted their sources with honesty and a proper devotion to learning. Bayle’s own extraordinary breadth of erudition enabled him to expose the falsehoods of historical writing with considerable success, practising a Cartesian approach of methodical doubt which bears witness to his view of the discipline as a science. Not that his approach was entirely negative, for all his pessimism about human nature. Like any science, historical investigation could be undertaken with positive hopes of truth. Certain rules of evidence existed: if all the parties agreed on a fact or motive, if the party prejudiced by it nonetheless accepted it as true, if the opposing side did not contest it even though it brought glory to the enemy. So he argued in his Critique g´en´erale (1682) (ii.1). Few, however, were capable of such high ideals; an historian had to be totally disinterested, and history must be ‘touched only by pure hands’, as he put it in his article ‘Richard Hall’, in the Dictionnaire historique et critique (1697). Bayle’s delight in historical facts and dedicated pursuit of them because they were more closely connected with experience than the mathematical truths dear to Descartes made him a figure who significantly influenced the burgeoning discipline of history. 4

Voltaire

Pre-eminent among Bayle’s heirs in this domain was Voltaire. Although Voltaire nowhere expressed praise of Bayle’s capacities as an historian, it is clear that in his critical examination of sources he closely followed Bayle’s criteria, citing the same rules of evidence as had Bayle for judging authenticity. Besides, he was anxious to have Bayle’s Dictionnaire by him as a sourcereference when working on the Essai sur les moeurs et l’esprit des nations (Essay on the Mores and Spirit of Nations, 1756), and a large number of details from the Dictionary were taken up in his work (Mason 1963, pp. 128ff). Like Bayle, Voltaire treated with reserve oral traditions and harangues, and made clear his wariness of historians motivated by party spirit. Bayle’s wide-ranging criticism of the Old Testament not only provided Voltaire with abundant polemical material, but also helped to pave the way for his secular approach 206

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Optimism, progress, and philosophical history to history. Since Voltaire did not appear to have been closely acquainted with other leading sceptical historians, such as Jean Hardouin and Louis Jean L´evesque de Pouilly, his debt to Bayle in this regard would appear to have been much greater than he acknowledged (Brumfitt 1970, p. 33). Voltaire did not, however, share Bayle’s dedication to total impartiality. In his view history was a weapon in the struggle against ignorant superstition and for the furtherance of enlightenment; to cite a famous phrase from his pen in a letter to his friend Nicholas Thieriot on 31 October 1738, ‘Il faut e´ crire l’histoire en philosophe’ (‘One must write history as a philosopher’) (Voltaire 1964b, p. 431). Unlike other great figures of the period such as Rousseau and Diderot, Voltaire both cared deeply about history and devoted a large part of his life to the writing of it. He was invited to write the Encyclop´edie article on the subject, a fitting recognition of his standing as an historian and former historiographer to Louis XV. His epic poem La Henriade (1723), one of his first major compositions, already departs from tradition in that genre by being based on a modern period (the age of Henri IV in the late sixteenth and early seventeenth centuries) rather than classical, Biblical, or mythical times. By 1727 he had already written, in English, his first historical work proper, the Essay upon the Civil Wars of France. In 1731 Voltaire’s first important contribution to the discipline, the Histoire de Charles XII, appeared; at about this time he began work on Le si`ecle de Louis XIV (The Age of Louis XIV, publ. 1752), one of his two major historical works. The other, the Essai sur les moeurs, was launched in the 1740s. To this Essai Voltaire added, in 1765, a substantial and important preface, La philosophie de l’histoire. Le si`ecle paid tribute to one of the few ages of mankind when, in the author’s opinion, civilisation had flowered. The Essai had a much broader scope. It was nothing less than a history of the world, but one quite different in conception from Bossuet’s Discours sur l’histoire universelle, which Voltaire referred to slightingly as a ‘so-called world history, which deals with only four or five peoples, and especially the tiny Jewish nation’ (Voltaire 1877–85, xxvii, p. 237). The Essai sur les moeurs was a global account of civilisation, with the emphasis primarily laid upon intellectual and social history. Voltaire saw the essential elements of civilisation as humane government and tolerant religion, permitting the development of trade, affluence, and leisure, and thereby providing the necessary conditions for enlightened living in which the arts and sciences can flourish. The Essai was essentially a history of peoples rather than of kings, who for Voltaire were of interest only in so far as they had improved the living conditions of their subjects. The title 207

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The new light of reason of the opening chapter revealed the perspective Voltaire wished to adopt: ‘De la Chine, de son antiquit´e, de ses forces, de ses lois, de ses usages, et de ses sciences’ (On China, its antiquity, its strengths, its laws, its customs, and its sciences). Voltaire was able to stress at once the cosmopolitan nature of his history by starting out in Asia, and, furthermore, with a nation of far greater antiquity than those in Europe or the Middle East. From China he progressed to India, Persia, Arabia, and Islamic culture before arriving, only in chapter 8, in Christian Rome, which was thereby put in Voltaire’s view into appropriate perspective. The discussion of China was typical. Voltaire was particularly interested in its institutions and customs: the size and nature of the towns, the state of the finances, the manufacture of paper and silk, the sciences of chemistry and astronomy, and much else besides, including above all an account of Chinese religion. In beginning with the antiquity of China Voltaire also served notice that he was setting his history in a secular chronology that took no account of the conventional Biblical dating of the Creation. This point was underlined in the Philosophie de l’histoire, where Voltaire reminded his readers that the Chinese empire was founded more than 4,000 years ago (ch. 18). This did not of itself contradict the traditional Christian assumption, advanced by Archbishop Ussher in the seventeenth century, that the world had been created in 4004 bce, but the ironic inference was unmistakable. Evident too was Voltaire’s resolutely secular stance in treating the Jewish people. Not only did he deny them any special status; he judged them to be inferior in every way to their Arab neighbours (ch. 6). The rationale of this approach was made clear in the Philosophie de l’histoire: ‘We shall speak of the Jews as we should of the Scythians and the Greeks, weighing up the probabilities and discussing the facts’. Indeed, the Jewish nation was even denied any claim to antiquity: ‘this nation is amongst the most recent’ (ch. 38). As for the Christian church, heir to the Judaic tradition, it had exercised a baneful effect upon the world during practically its whole history. In particular, ever since the massacres of the Albigensian heretics in the thirteenth century, blood had never ceased to flow because of religious persecutions instigated by the church. Voltaire went on to say that the whole history of Christianity is a collection of crimes, follies, and misfortunes, in which only a few virtues and a few happy times were discernible, like dwellings distantly scattered in deserts (ch. 197). On occasion the author strung together a chain of senseless horrors in a manner reminiscent of Candide. One such example was an enumeration, some 300 words long, of murders and mutilations in eighth-century Constantinople (ch. 29). The details were horrifying – eyes 208

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Optimism, progress, and philosophical history gouged out, tongues and noses cut off, a murdered man’s skull serving as a cup for his killer to drink from; but Voltaire also brought out the madness of these atrocities with a meaningless word-list, turning the protagonists into grotesque puppets. However, by contrast with Candide, it was a tone of regret rather than mordant irony which dominated the Essai. When, for instance, referring to the Catholic accusation that Luther had consulted the devil and also thanked him for his help, Voltaire rejected facile humour, observing that one should not joke about sad matters where the happiness and torments of so many were at issue (ch. 128). History was not to be mocked, for all the follies of its participants. Instead we should be inspired with pity and a sense of justice, the two basic elements of Voltaire’s moral code. Nor was history futile. Despite the quasi-universal lunacy of historical events, the main theme of the Essai was that mankind gradually made progress. This was especially the case in Europe, whose civilisations began later than those of China and India but had now overtaken them. From the twelfth century onwards culture steadily reaches out from Italy into the whole of Western Europe. As true enlightenment gained the ascendant, belief in myth decayed and human reasoning, encouraged by the new intellectual climate, came to prefer what was true to being seduced by the marvellous. Fortunate periods had existed, like Athens in the time of Pericles, or the age of Louis XIV. There had been great men, like King Alfred of England or Henri IV. The Essai was therefore able to conclude on an optimistic note: ‘When a nation is acquainted with the arts, when it is not subjugated . . . it emerges with ease from its ruins and never fails to restore itself.’ It was always possible for the cultured members of society to exploit the love of order and the gregariousness that were endemic in human nature and to triumph over barbarism. Hence the possibility of writing history en philosophe. History could be an instructive indicator of social change, whether the field was economic, technological, artistic, or institutional. To that end, Voltaire amply sourced himself from documents. But the documentation was sometimes flawed by a disregard for precise detail; not for Voltaire the pedantic concern for exactness at all costs if the matter seemed to him only trivially significant. The essential criterion was utility: would the material help towards changing society for the better?2 In the Essai Voltaire compiled what other historians had had 2 It has been argued that Voltaire was less unreliable than is sometimes supposed: Brumfitt 1970, pp. 134– 5; Pomeau 1995; Brumfitt in Voltaire 1969, p. 49.

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The new light of reason to say, rather than undertaking his own research. Furthermore, he relied on written sources; extra-literary sources were scarcely considered; and he showed scepticism towards evidence such as contemporary medals (Voltaire 1963a, i, pp. xxi–xxii, ii, p. 802). In addition, his judgement was somewhat blinkered. Voltaire depended heavily on the notion of vraisemblance: was an event or motive a likely possibility, when one considered the persons and circumstances involved? Such an approach inevitably carried the risk of subjective miscalculation, especially given Voltaire’s rationalist views when confronted with the apparently irrational and religious. He rejected, for instance, the idea that temple prostitution could have existed in Babylon, on the a priori grounds that no man would be involved in such a practice when those he respected were present (ch. 34). Yet, despite these weaknesses, Voltaire was commendably assiduous in searching for evidence of what had to be excluded as erroneous. Even the respected Roman historian Tacitus was sharply called to task on occasion. It was not Voltaire’s way to build up a system on purely hypothetical constructs, as Rousseau did in the Discourse on Inequality. Whilst he may thereby have shown the limits of his imagination, he also demonstrated a concern for the factual, at least when large issues were not involved. Despite his scant regard shown for the middle ages, despite his tendentious refusal to see any cultural values in the medieval church, the contribution made by the Essai to historical writing in general is substantial: Voltaire had shown the possibility of a history of civilisation, and of its progress. 5

Gibbon

In a broad sense, Gibbon was at one with Voltaire. He too showed an unswerving allegiance to secular history, even though the approach was less polemical. With ironic respectfulness, Gibbon distanced himself from religiously orientated historians when he came to discuss the ‘progress of the Christian religion’. ‘The theologian may indulge the pleasing task of describing religion as she descended from heaven, arrayed in her native purity. A more melancholy duty is imposed on the historian’ (Gibbon 1994, i, p. 446). The latter’s task was to analyse the combined error and corruption into which religions fell among ‘weak and degenerate’ human beings. Gibbon conceded that there was an obvious reason for the triumph of Christianity: ‘the convincing evidence of the doctrine itself and . . . the ruling providence of its great author’. That said, the historian must be concerned with ‘secondary causes’ (1994, i, pp. 446–7). His subject of enquiry must be man, 210

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Optimism, progress, and philosophical history not God, whose purposes are unknowable and therefore outside the scope of rational investigation. Gibbon had been much impressed by Montesquieu because the latter had sought to discover, beneath the flux of human events, basic interrelated structures and factors motivating historical change. In Gibbon’s first published work, the Essai sur l’´etude de la litt´erature (1761), he paid Montesquieu a great compliment: ‘let us carefully preserve every historical fact. A Montesquieu may discover, in the most trivial, connections unknown to the vulgar’ (Gibbon 1970, p. 110). These connections were allied, for Gibbon as for Montesquieu and Voltaire, to a belief in the universality of human nature. Gibbon saw man as a volatile mixture of constructive reasoning and destructive passions, as had always been the case since his most primitive state. But the presence of that rational faculty gave grounds for hope of human progress. This optimism, however, Gibbon restrained. He adapted Voltaire’s famous phrase in stating that history is ‘little more than the register of the crimes, follies, and punishments of mankind’ (Gibbon 1994, i, pp. 109–10). But, like Voltaire, he discerned the possibility of improvement for the human race, albeit this was problematical in view of human nature’s unpredictability when faced with the complexity of events. Man’s progress, he felt, had been ‘irregular and various’, composed of a series of vicissitudes, including on occasion a swift decadence after long periods of slow improvement. Even so, taking the long view, there was reason for hope. How far mankind might go in the attainment of perfection was impossible to guess. Some gains, however, appeared to be permanent: ‘no people, unless the face of nature is changed, will relapse into their original barbarism’ (1994, ii, p. 515). On what was this prognosis founded? Essentially, on the facts of social change. The human race had raised itself out of savagery because certain basic skills had been acquired: the use of fire, metallurgy, hunting, fishing, navigation, agriculture, simple technology, and the domestication of animals. These techniques had been definitively acquired, in Gibbon’s opinion, because they required no special genius and were therefore distributed widely. Despite the fact that the barbarians overthrew Rome, the humble scythe, for instance, continued unchanged to reap the annual harvest in the Italian countryside (1994, ii, pp. 515–16). So what was assured in human progress turned out to be modest in its dimensions. On a more sophisticated plane matters became doubtful. Gibbon cited the developments in law, politics, commerce, manufactures, and the arts and sciences as having the appearance of solid permanence. 211

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The new light of reason Likewise, ‘many individuals may be qualified, by education and discipline, to promote in their respective stations the interest of the community’. But since all this is the result of ‘skill and labour’, it could easily be lost through the eruption of violence or time’s decay (1994, ii, pp. 515–16). The overall balance-sheet, however, tended to be positive, as the conclusion to Gibbon’s ‘General Observations on the Fall of the Roman Empire in the West’ demonstrated. The arts had been propagated everywhere through the effects of war, commerce, and religion (an equivocal observation typical of its author); they could not therefore be lost. Hence, in the final words of the ‘General Observations’, Gibbon arrived at ‘the pleasing conclusion that every age of the world has increased and still increases the real wealth, the happiness, the knowledge, and perhaps the virtue of the human race’ (1994, ii, p. 516). Contemporary Europe was a safer place than imperial Rome. Unlike the incompetent oligarchy which ruled the Empire, Europe was now divided into no fewer than fifteen major states and many smaller ones, all of them constrained by motivations of fear and shame and therefore possessing, in varying degrees, a spirit of moderation. No new barbarian invasion could ever conquer them all. Indeed, the very success of any potential conqueror would spell their downfall, since their skills in military warfare would necessarily bring greater knowledge and with it greater enlightenment, destroying their barbarism from within. It would, however, be unwise to ignore the temporising note of the very last words in the ‘Observations’: ‘and perhaps the virtue of the human race’ (my emphasis). For all the technical and material improvements it had enjoyed, had mankind become any wiser or more just? A certain scepticism was permissible. This stance of ironic detachment characterised the Decline and Fall throughout. Tongue in cheek, Gibbon contrived to keep his readers in doubt, refusing them any easy conclusions. History was an uncertain, approximate, record of events, often mysterious, drawn from unreliable witnesses. Very little in Gibbon’s work was entirely black or white; heroes and villains alike were rarely totally so. Amongst the former must surely be placed Julian the Apostate, one of the most admirable figures in the Decline and Fall. The combination of courage, wit, and intense application in his character, said Gibbon, would have brought him eminence in any field he had cared to choose. As emperor, Julian did not distinguish between duty and pleasure, and constantly endeavoured to ensure that authority was meritorious, and that happiness went hand in hand with virtue. But these excellent qualities were offset by a belief in the pagan gods so total that it ‘would almost degrade the emperor to the level of an Egyptian monk’. Had Julian not been 212

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Optimism, progress, and philosophical history prematurely killed in battle, his oppression of the Christians and efforts to reestablish paganism as the dominant religion would have led the Empire into civil war. As Gibbon put it, with a typically judicious element of iconoclasm: ‘When we inspect with minute or perhaps malevolent attention the portrait of Julian, something seems wanting to the grace and perfection of the whole figure’ (1994, i, p. 863). The phrase ‘or perhaps malevolent’, at first reading almost an afterthought, allows the reader the freedom, if desired, to believe that Gibbon was being uncharitable. Nonetheless, this even-handed refusal of all idolatry was trenchant. If Julian ranked with the best of those who made an appearance in the Decline and Fall, Constantine quite clearly belonged with the less worthy. From Constantine’s time dated the definitive decline of the Empire into corruption, as he committed the irreparable error of founding a rival city to Rome that would become one of the major causes of its fall. Whereas under the rule of the Antonine emperors Rome had been ‘united by laws and adorned by arts’, comprehending ‘the most civilized portion of mankind’, after the reign of Constantine it became, in 410 ce, subject to a barbarian conquest, ‘delivered to the licentious fury of the tribes of Germany and Scythia’ (1909–14, i.1, i.28 and iii.321–2). As Gibbon envisaged it, the collapse of Rome’s grandeur initially under the Goths and then, in the east a thousand years later, ultimately under the Turks, virtually portrayed the sagas of Livy’s Rise of Rome and Virgil’s Aeneid in reverse. In each case it had been subject to waves of pressure from outside, the Gothic invasion largely inspired by the Goths’ displacement at Rome’s Danubian border by the Huns, the Turks by pressure emanating from Central Asia by the Tartars. But in each case Rome was above all weakened by internal decay, and Constantine’s adoption of Christianity as the Empire’s official religion was the most pivotal development of all, for it emasculated its military strength by progressively turning its population’s attention inwards, away from its collective identity and instead merely to the salvation of individual souls. It also engendered an internal cancer, which through the Crusades would eventually lead to the sacking of the Eastern Empire by Western Christendom’s marauding armies. Gibbon observed with sardonic amusement the spectacle of this emperor, mad with arrogance, tracing out an ever-larger area for the future city before his incredulous assistants. Constantine uttered the fatuous reply of one who thought he was God’s instrument on earth: ‘I shall still advance . . . till he, the invisible guide who marches before me, thinks proper to stop.’ The historian’s comment, seemingly reserving judgement on divine matters, is 213

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The new light of reason crushing: ‘Without presuming to investigate the nature or motives of this extraordinary conductor, we shall content ourselves with the more humble task of describing the extent and limits of Constantinople’ (1994, i, p. 593). Yet even Constantine, also ignominious for instituting the persecution of heretics, was not wholly a force for evil. He had founded a great new capital city whose size and amenities fascinated Gibbon; and in the ‘General Observations’ the historian showed that events in some measure confirmed Constantine’s judgement because Constantinople preserved order in the East against the barbarians while the West was in decay. But, even if they resulted in ambiguity, the facts must always be respected. On this account Gibbon found Montesquieu wanting, and Voltaire even more so (Baridon 1977, p. 691; Porter 1988, p. 71). The latter was memorably rebuked in the opening chapter of the Decline and Fall: ‘M. de Voltaire, unsupported by either fact or probability, has generously bestowed the Canary Islands on the Roman empire’ (Gibbon 1994, i, p. 54 n. 87). Castigating both the ecclesiastical historian Louis Maimbourg and Voltaire for their excessive eagerness to take (different) sides, he slightingly adds: ‘The prejudice of a philosopher is less excusable than that of a Jesuit’ (1994, iii, p. 583 n. 65). Gibbon was of the firm persuasion that a true historian must root out all prejudice. Narration of detail must be of the most exacting rigour. In fact, the range of Gibbon’s reading was enormous.3 He acquainted himself with all the printed editions of primary sources that he could find, as well as a wealth of supporting material like travel literature. After careful checking, fellow historian William Robertson paid him this compliment: ‘I find that he refers to no passage but what he has seen with his own eyes’ (Porter 1988, p. 73). To all this one must add the insights gained by a long experience of human nature, which may on occasion supply the want of historical material (Gibbon 1994, i, p. 253). For ultimately facts were only a means to the end of history, which helped us to enlarge our horizons: ‘To the eyes of the philosopher events are the least interesting part of history. It is the knowledge of man, morality and politics he finds there that elevates it in his mind’ (Gibbon 1814, p. 126). Like Voltaire, Gibbon allowed an element of reasonable surmise when facts were absent. Writing of the years 248–68 ce, a particularly bloody period for emperors, he argued that the successive murders of so many of them must have loosened the ties of allegiance between sovereign and people. This conjecture appears probable. But the approach carried the same 3 Porter 1988, p. 72, counts 8,362 references in the Decline and Fall.

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Optimism, progress, and philosophical history dangers as for Voltaire, since in the end it must come down to the chances of success that a reasonable guess by an eighteenth-century writer might have for uncovering the truth about other times and places. In addition, Gibbon’s research stopped short at written sources, in this regard breaking no new ground with reference to other kinds of evidence (Momigliano 1966, p. 40). So his history was most reliable when strongly supported by printed material. But when, as in his confessed ignorance of ‘Oriental tongues’ (Gibbon 1994, iii, p. 151 n. 1), he is unable to use sources in those languages for studies such as his account of Mohammed, his limitations are clear. However, these constraints must not be allowed to blind one to the formidable achievements of the Decline and Fall and its global, universalist, perspective. History might be full of paradox and ambiguity; but it was not absurd. Nevertheless, civilisation was a fragile artefact. Gibbon felt that any investigation of the causes of the Roman collapse should not start from the premise that it required an exceptional explanation, as though it were an extraordinary event: ‘instead of enquiring why the Roman empire was destroyed, we should rather be surprised that it had subsisted so long’ (1994, ii, p. 509). Even so, this fragility did not preclude the possibility of civilisation, thanks to enlightened human effort. Similarly the historian, by allying erudition to rational intelligence, stood a chance of understanding the past, and thereby (since human nature was universal), the present. The Decline and Fall stood as the practical proof of that theory. Gibbon did not attempt a systematic causal account of the ruin of the Empire. But the ‘General Observations’ on the fall of Rome gave useful pointers to his thinking. He felt that the decline of Rome was above all the natural result of over-expansion: ‘Prosperity ripened the principle of decay . . . the stupendous fabric yielded to the pressure of its own weight.’ One had the sense of a phenomenon almost as physically fatal in its effects as metal fatigue. Hence it followed that for Gibbon the history of that decline was ‘simple and obvious’ (1994, ii, p. 509). In practice, it was even possible to isolate certain fatal causes. The division of the Empire between Constantinople and Rome was important in encouraging dangerous jealousies between East and West, which themselves increased arbitrary and despotic government. Military power had grown stronger, at the expense of the civil authority. Not least, ‘the introduction, or at least the abuse, of Christianity had some influence on the Decline and Fall of the Roman empire’ (1994, ii, p. 510). As with all else in Gibbon, there were no simple lessons to be learned from the rise of the Christian religion. On the one hand it had undermined 215

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The new light of reason the spirit of religious toleration that had prevailed under the pagan rituals of the imperial Pax Romana, when its subjects’ diverse ‘modes of worship . . . were considered by the people as equally true; by the philosopher as equally false; and by the magistrate as equally useful’ (1909–14, i.28). On the other hand, through its network of churches and bishops, Christianity had actually helped to support the unity of the Empire, which it had further assisted by preaching obedience to lawful authorities. Besides, its moral purity helped to tame the fierce barbarians of the North. On balance, however, the nefarious influence of the church had far outweighed these advantages. The new religion undermined the structures of society. Civic pride was discouraged, military valour despised. Much of the Empire’s wealth was given away to ‘the specious demands of charity and devotion’. Christian zeal fired religious strife, so that factionalism became widespread, creating a new kind of tyranny and turning devotees of the religion into ‘the secret enemies of their country’ (1994, ii, pp. 510–11). Gibbon’s indictment was formidable, encapsulating the lengthy account to which he devoted chapters 15 and 16, where he analysed the ‘secondary causes’ of this success story. Christianity represented an entirely new phenomenon, because it set out to proselytise. Heir to the unattractive element of exclusiveness already existing in the Judaic religion, it had gone further in preaching to the faithful that they had a duty to convert others to their cause. Pagan idolatry had been regarded as the devil’s work; so pagans had to be persecuted for the good of their souls. In addition, the Christian religion had preached an active belief in eternal rewards and punishments: bliss for all true followers, but eternal torture for the unbelievers, depicted with particularly horrific exultation by Tertullian. Furthermore, all this was imminent; for the Second Coming was at hand. In such a feverish state of waiting Christians had withdrawn from all active participation in the wider society, whether civil, administrative, or military. Above all else they held moral purity and asceticism in awe, whilst abjuring all earthly delights, rejecting all knowledge outside the scriptural, despising all cultural appurtenances (art, music, dress, furniture, food, housing). What Gibbon was describing here was an upsurge of fundamentalist enthusiasm, triumphant by virtue of the strict discipline it imposes on its members. The stage was set for the persecutions of the heretics that would begin in earnest after Constantine. Thus Christianity came to be invested with much of the blame for the collapse of Rome. But one must not oversimplify Gibbon’s story. The fall, as we have seen, was not in his view monocausal. Nor must we forget that his great history did not end with the pillage of Rome by the Goths in 216

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Optimism, progress, and philosophical history 410. Gibbon set himself the task of narrating the later course of the Eastern Empire right up to the fall of Constantinople in 1453: the rise of Islam, the Crusades, the conquests of Tamberlane. The canvas continued to be immense, its elements collectively producing what Gibbon in the conclusion – in a passage that may have inspired, in his Reflections, Burke’s strikingly similar assessment of the world-historical significance of the French Revolution – as ‘the greatest, perhaps, and most awful scene in the history of mankind’ (Gibbon 1994, iii, p. 1084). No greater challenge could have been set the eighteenth-century historian. Through Rome Gibbon approached the history of civilised society in general, that finest product of human effort, incorporating despite its delicacy all the values by which enlightened people should live. For Gibbon, history was more than scientific enquiry; it was evidence of a passionate concern with promoting human development through the ‘knowledge of man, morality, and politics’ which for him was to be drawn from a study of the past.

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8 Naturalism, anthropology, and culture wol f gang p ro s s ∗

1

A Counter-Enlightenment?

When the roots of Romanticism are traced to the age of Enlightenment, they are often located in the hinterland of Europe, where, at the margins of civilisation, solitary thinkers like Vico in Naples, Rousseau in Neuchˆatel, or Herder in Lithuania are portrayed as having cast themselves adrift from the prevailing intellectual currents of their day. In opposing the idea of progress such proponents of what in the late nineteenth century came to be termed the Counter-Enlightenment are alleged to have subscribed to diverse notions of primitivism, preferring ancient mythology over modern science, popular intuitions over abstract ideas, and uncouth human nature over the refinements of culture. In confronting Enlightenment philosophy they are taken to have undermined its most central premises and subverted its aims in the manner of prophets harking back to a world we have lost, betrothed to fictitious ideals of uncultivated simplicity which, while derided by their contemporaries, have made their doctrines seem peculiarly post-modern and thereby apposite to a post-Enlightenment world. Such perspectives, however, do grave injustice to the careers of Vico, Rousseau, Herder, and their disciples. When he put forward his nowcelebrated notion of ‘ricorso’ – that is, of ‘repetition’ or ‘return’ – in just the last of his three formulations of a New Science of the laws of development of human society (Scienza nuova, 1725, 1730, and 1744), Vico was not advocating mankind’s reversion to a state of barbarism. As the Italian scholar Giuseppe Giarrizzo remarked, Vico’s political science was actually conceived ‘to save mankind from the return of barbarism’ (Giarrizzo 1981, p. 21). For his part, Rousseau insisted, against the critics of his first Discourse on the Arts and Sciences (1751), that the return of humanity to its primeval state was neither possible nor desirable, adding in his second Discourse on the ∗

In dedicating this essay to Oskar B¨atschmann, the author also wishes to express his gratitude to Simone De Angelis, Martin Immenhauser, and Robert Wokler for their helpful comments and assistance.

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Naturalism, anthropology, and culture Origin of Inequality (1755) that he deemed it necessary to make his way in this world as a loyal citizen bound by his state’s laws. Much of his own political science was inspired by the teachings of the great masters of natural law, in many instances mediated by the commentaries upon their works provided by Jean Barbeyrac, as Robert Derath´e has shown (Derath´e 1950). Herder, moreover, while criticising the state as a soulless machine which deprives the individual of his rights and autonomy, set out in Another Philosophy of History for the Benefit of the Education of Mankind (1774) a critique of the merely formal principles of contractual obligation deemed to establish the foundations of government, such as those portrayed in Cesare Beccaria’s On Crimes and Punishments (Dei delitti e delle pene, 1764) or Adam Ferguson’s Essay on the History of Civil Society (1767). Each of these authors, together with many others throughout the eighteenth century, drew upon the same sources of natural jurisprudence, including, most particularly, an argument employed by Pufendorf in his On the Laws of Nature and Nations (De jure naturae et gentium, 1672), where he remarks that ‘hidden within the individuals who comprise the state are, metaphorically speaking, the seeds of power, stirred and made to flourish by contracts, which combine these individuals into a body’ (vii.iii, § 4). One of Herder’s chief concerns was to make this point about the state’s foundations by way of confining the state’s power, so that its omnipotence could not irretrievably supersede the natural qualities of its members, whose total subjection would stifle the vital force of not only the individual but also the whole nation. The erroneous identification of Vico, Rousseau, and Herder as CounterEnlightenment thinkers has been largely based upon decontextualised interpretations of their meaning proffered by commentators inattentive to their sources or with only isolated interests in particular themes they addressed. In the case of Vico, Hegelian readings of his philosophy of history advanced by Francesco de Sanctis, Benedetto Croce, Giovanni Gentile, and their followers have for the most part ignored not only its roots in natural law but also its debts to philosophical and scientific speculation prevalent in Naples around 1700. Vico owed much to Lionardo da Capua’s mythological model of the history of medicine and to Giuseppe Valletta’s constructions of a history of science, but the influence upon his writings of these naturalists, and of Gian Vincenzo Gravina’s theory of evidence directed against Descartes’s ‘cogito ergo sum’, has seldom been addressed, despite the pioneering scholarship in these areas of Nicola Badaloni, Enrico De Mas, Paolo Rossi, Leon Pompa, Giorgio Tagliacozzo, and Harold Stone (Stone 1997). The study of myth, certainly one of the keys to Vico’s theory of history, was already for Gravina 219

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The new light of reason before him (Delle antiche favole (On Ancient Fables), 1696) a wholly adequate and legitimate form of cognition as well as of poetry, enabling soaring flights of fancy to reign supreme, as had been recognised in mankind’s antiquity. But it is within the framework of the concepts of natural law, in the wake of Grotius, Pufendorf, and Gravina (a jurist of distinction in his own right) that Vico shaped his outlook on the state of nature and the establishment of laws among nations, transforming the crucial juridical problem of a ‘natural law of nations’ into the cornerstone of a philosophy of history. Rousseau, for his part, was not only well versed in the natural jurisprudence of Grotius, Pufendorf, Barbeyrac, Burlamaqui, and other thinkers; he also read both Hobbes and Locke meticulously in absorbing their respective scientific and theological notions of politics within his own philosophy. The third book of his Social Contract (1762) comprises one of the most elaborate treatments of Montesquieu’s Spirit of the Laws (1748) in the whole of the eighteenth century. No major writer on political themes in the period was better acquainted with Condillac’s philosophy of language, whose implications for the study of politics itself he pursued in works such as his Letter to d’Alembert on the Theatre (1758) and his posthumously published Essay on the Origin of Languages (1781). No work exercised a greater impact upon his conception of mankind’s civil history in his second Discourse than the first three volumes of the Natural History (1749–51) of the Enlightenment’s pre-eminent historian of the natural sciences, Buffon. Herder, no less than Vico and Rousseau, has come to be regarded as a prophet of Counter-Enlightenment, by virtue of his imputed intellectual isolation, on account of his alleged adherence to Johann Georg Hamann’s theological mode of reasoning, and because of his seemingly ‘irrational’ opposition to his former teacher, Kant. Such erroneous descriptions of his marginality underpin the legend of his paternity of German nationalism, if not of the pan-Germanism of the Third Reich, with its dreadful consequences in the twentieth century. Max Rouch´e’s interpretation, published just before the German invasion of France, greatly helped to perpetuate that reading, despite the endeavours of F. M. Barnard (Barnard 1965a; Rouch´e 1940). When Herder, together with the young Goethe whom he had met in Strasbourg in 1770, presented the ‘flying leaves’ Of German Style and Art (Von deutscher Art und Kunst, 1773), they appeared not only to have launched a manifesto for the literary Sturm und Drang movement but also to have voiced the battle cry of the Germans demanding to take their place as a young, ruthless nation in the community of age-stricken 220

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Naturalism, anthropology, and culture civilisations. And the ‘pamphlet’, as Herder called it himself, of the following year – Another Philosophy of History – seemed to summon the dark middle ages to snuff out the pervasive light of reason and to discard all achievements of the modern world and its advocates, Voltaire and the Encyclop´edistes foremost among them. Although there is scarcely a grain of truth in such perspectives, legends ascribing to Herder doctrines of medievalism, nationalism, and irrationalism are ineradicable, because they engender a mysterious aura of darkness, so well suited to the prophets of post-rationalism and post-modernity. Thus has ‘darkness’ once again become a favourite subject of research with respect to Herder today. Yet Herder was profoundly acquainted with the political, philosophical, and historical writings of contemporary European thinkers – with French authors, such as Montesquieu, Antoine-Yves Goguet, Guillaume-Thomas Raynal, and, of course, Voltaire, Diderot, and the authors of the Encyclop´edie (to whom he owes a debt that can scarcely be exaggerated); with the English-language discourses of Hume, Ferguson, Monboddo, Robertson, and Gibbon; with Italians such as Denina, Giannone, or Muratori, not forgetting the whole tradition of Italian anti-curialism from Machiavelli to Paolo Sarpi. Above all, perhaps, historical perspectives drawn from the Scottish Enlightenment, combined with the idea of a ‘history of the human mind’ such as had been developed by Locke, Condillac, and Diderot, helped him to frame an interpretation of man as a social being with reference to different stages of human culture. It was not nationalism but what he termed the ‘obliteration of national characters’ which he expected would prove the destiny of modern Europe, as he explained in the last volume of his Ideas towards a Philosophy of History of Mankind in 1791 (bk xvi, vi: HW, iii/1, p. 650).1 There is no difference between the central theme of that work and the philosophy of history he had put forward in his Journal of my Voyage in the Year 1769: ‘We run riot’, he had already remarked there, if we praise, like Rousseau, times that have vanished, or a time that did not exist . . . You must become a preacher of the virtues of your own age! What a great theme, to show that – in order to be what you should be – you have to turn neither into a Jew, nor an Arab, a Greek, a savage, a martyr, or a crusader; but simply be the man God demands you to be, according to the stage of our culture: enlightened, instructed, refined, reasonable, educated, virtuous, and capable of pleasure. ( Journal meiner Reise im Jahr 1769: HW, i, p. 375) 1 Throughout this chapter HW stands for Herder 1984–2002.

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The new light of reason Interpretations of Herder have also suffered from a fundamental misunderstanding of Enlightenment philosophy of history, in so far as it has been deemed to be devoid of the genuine historical comprehension achieved in the historical writing of the nineteenth century. The ‘genetic’ and ‘organic’ methods attributed to German historiography by commentators who seek to distinguish them from their allegedly ‘rationalist’ counterparts in other Western European traditions could hardly constitute less specifically historical explanations for the development and metamorphoses of human cultures. Herder’s conceptions of organic forces, despite their antecedents in Leibniz, were in fact borrowed wholesale from the writings of French naturalists like Buffon, Charles Bonnet, and Jean Baptiste Ren´e Robinet, or from philosophers, including Diderot or d’Holbach, themselves inspired by such ideas (cf. Roger 1963). The German scientist and writer Georg Christoph Lichtenberg spoke in his Waste Books of ‘the term “organisation” that has become now so fashionable among the French’ (Lichtenberg 1967– 92, i, p. 704). The concept of history to which Herder subscribed embraced the ‘naturalisation’ of history and the formulation of ‘laws’ that governed it (cf. Pross in HW, iii/2, pp. 589–603). From the beginning of his career Herder emphasised the need for Newtonian laws of human history, such as he believed had been overlooked by Montesquieu in the Spirit of the Laws (Gedanken bei Lesung Montesquieus, 1769: HW, i, pp. 468–73). In his Dialogues on Spinoza (Gott. Einige Gespr¨ache), published in 1787, together with the theoretical fifteenth book of his Ideas, he spoke of a ‘mathematical-physical and metaphysical formula’, which might equally explain the laws of nature and of history (HW, ii, p. 775). The history of humanity was to be understood in its association with the processes of nature, whose evolution had only been apparently arrested with the appearance of the most perfect animal on earth – that is, with man. The key to Herder’s theory of culture is to be found in notions of this kind, linking him not only to the philosophical works of Bacon, Campanella, Gassendi, and Spinoza in the previous century but also to Vico, who, in his first New Science, had remarked that none of the sciences has yet contained a meditation upon . . . the humanity of nations . . . with which to measure the stages through which the humanity of nations must proceed . . . [nor] gained scientific apprehension of the practices through which the humanity of a nation, as it rises, can reach this perfect state, and those through which, when it declines from this state, it can return to it anew. (New Science, 1725, bk i, ch. 2: Vico 2002, p. 11; cf. Vico 1971, p. 173)

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Naturalism, anthropology, and culture 2

Mankind and the dark abyss of time

Despite their different intellectual backgrounds, and most particularly the domination of jurisprudence and rhetoric in Vico’s education and that of philosophy and natural history – especially geography and physiology – in Herder’s, a common point of departure marks each of their ways of conceiving a ‘new science’ and their respective philosophies of history that stem from it: the questioning of chronology entailing a radical change in the concept of history. Vico’s and Herder’s ‘new sciences’ of history challenged Christian chronocentrism as much as Copernicus and Galileo had shaken Christian geocentrism, albeit with different results. According to the Aristotelian division in the Poetics, ‘historia’ spoke only of particular events, quite differently from poetry, the repository of what concerns mankind in general. Universal history had therefore been conceived exclusively in terms of sacred history, through which providence had governed the course of one chosen nation. The history of the gentiles, therefore, had been considered only as a series of events that accompanied the elected Jewish people on their path towards the epiphany of the Messiah. This history of the sons of Cham and Japheth had been curtailed to fit Biblical chronology as established by Archbishop James Ussher in his Annals of the Ancient and New Testament (1650–4), who had determined that the creation of the world had occurred in the year 4004 bc. Bossuet’s endeavour to sustain this scheme in his Universal History (1681) had already been undermined, without his being aware of it. For in 1658, in the First Decade of the Annals of the Chinese Empire (Sinicae historiae decas prima, Res a` gentis origine . . . ), the Jesuit missionary Martin Martini had published an account of the reign of the first Chinese emperors, which apparently conflicted with Ussher’s chronological frame of universal history. The Chinese annals purportedly made plain a sequence of unbroken continuity from 2952 bc, 604 years before the Flood had swept away all human life on earth in the year 2348 bc or the year 1656 of the world after its Creation, according to the scheme of Genesis as dated by Ussher. If the Chinese annals were right, the Flood of the Bible was not an event of universal impact, and the Bible would have been proved to be wrong. The Bible itself contained mysterious references to ‘Giants’, whose existence within the annalistic framework proved to be a crucial question: was there a possibility of ‘Pre-Adamites’, human life before Adam and outside God’s creation? Isaac de La Peyr`ere’s Men before Adam (Systema theologicum ex Praeadamitarum hypothesi, 1655) had raised this impious doubt, only one 223

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The new light of reason year after Ussher’s seemingly conclusive annalistic work (cf. Rossi 1984). Ethnographers and antiquarians with their reports on the chronology, myths, and antiquities of Mexico, Peru, Tibet, India, Egypt, Phoenicia, or Chaldaea widened the gulf between sacred history on the one hand, and the outlines of a new chronology on the other, making the descriptions of antiquity offered by Lucretius and Diodorus Siculus appear to approximate the truth more closely than the story of Paradise and its loss. Chronology, therefore, played an important part in Vico’s conception of history; already in the Universal Right (Diritto universale, 1720) the principles of the ‘new science’ were based on reflection on sacred chronology in comparison with data on the history of the gentiles (Universal Right, bk ii, pt ii, ch. 1: De constantia philologiae: Vico 1974, pp. 386–401). In his definitive redaction of the New Science (1744) Vico begins, after an exposition of the idea of his work, with a Chronological Table which faithfully reproduces Ussher’s framework of dates for the sacred history, trying to fit in the history of the gentiles divided into the three ages of the gods, heroes, and men (New Science, 1744, bk i, Annotazioni alla tavola cronologica: Vico 1971, pp. 399–431). It is precisely this acknowledgement of the Christian tradition that aroused serious doubts about the orthodoxy of Vico’s method. Was there enough time – within the traditional chronology after the Flood when the sons of Noah, according to Vico, dispersed in order to turn into those ‘bestioni’, animal-men in the sense of Lucretius – for re-creating or re-inventing all the cultural techniques which mankind had possessed before its extinction through God’s wrath? This was the question raised by the Dominican Germano Federigo Finetti in his On the Principles of Natural Law and the Law of Nations (De principiis juris naturae et gentium, 1764), using the name of his brother Gian Francesco to conceal his identity (Finetti 1764, ii, bk xii, ch. 6, pp. 307–17). The state of nature, conceived as ‘ferinitas’ (‘ferocity’) was fundamentally incompatible with sacred history, so Finetti argued against Vico and Rousseau. Genesis teaches us that God created man, endowed him with language and notions of the world appropriate to his capacities, and finally placed him, by creating Eve, into a ‘domestic society’ that allowed the transmission of Adam’s knowledge to his posterity (i, bk v, ch. 4, p. 292). This form of society, entailing man’s peaceful sociability, is what Finetti opposes to the ‘absurd propositions’ of Hobbes, Pufendorf, Vico, and Rousseau concerning the solitude, weakness, and uneasiness of mankind in the natural state. When Rousseau tried to avoid the problem in his Discourse on the Origin of Inequality by presenting his views as mere hypotheses (‘Let us set aside all the facts!’), the same Finetti, 224

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Naturalism, anthropology, and culture placing the citizen of Geneva alongside the philosopher of Naples, remarked shrewdly: But he [Rousseau] addresses his readers in that way: O man, whatever are your origins and opinions, listen: here is your history which I believe I did not read in the books of your equals who are liars – and who cannot see that he [Rousseau] classifies among those liars Moses, the first and even the only true author of the history of mankind? – but in nature which never lies.

Finetti continues by asking what sort of ‘nature’ this could be, if not a substance estranged from God, or – worse – Spinoza’s substance which incorporates God into nature? (i, bk v, ch. 4, p. 281). Mankind would have to be regarded as abandoned by universal providence to its own resources, and despite all professions of adherence to Catholic doctrine on Vico’s part, the formula of the blasphemous eleventh Prolegomenon of Hugo Grotius’s On the Law of War and Peace (De jure belli ac pacis, 1625) would become the programme of this ‘new science’. There must be a law which governs human behaviour even if God’s existence were not susceptible to incontrovertible proof (‘etsi non daretur Deus’). When Finetti pointed to the consequences of abandoning the book of Genesis as the unique and genuine source of history, he merely proffered the same argument against Rousseau, and implicitly Vico, that had already been used in Naples at the end of the seventeenth century against Thomas Burnet, in the wake of Cartesian mechanics and Spinozist monism. To question sacred chronology was to eliminate the ‘architect from his creation’. The world would therefore come to be lost not only in the infinity of space and matter but also in the abyss of unfathomable time (Rossi 1979, p. 98). But by 1764, the cause of sacred history was lost. It is true that, fourteen years after Vico’s last New Science, Antoine-Yves Goguet could still present afresh Ussher’s scheme in his On the Origins of Laws and the Arts and Sciences (De l’origine des loix, des arts, et des sciences, 1758) as a chronological framework for his, otherwise revolutionary, comparative history of the cultural techniques of the ancients. But in 1749, Buffon’s Theory of the Earth (Th´eorie de la terre), to which he devotes a section of the first volume of the Natural History (Histoire naturelle), had, by going back to and reassessing William Whiston’s cosmogony, already threatened all arguments that spoke in its favour. In his later Epochs of Nature (Epoques de la nature, 1778), Buffon admitted in public that the Earth was about 75,000 years old; his unpublished calculations added up to about 3 million years (Rossi 1979, p. 135). And, what is more, Buffon imitated in his fashion the framework of the cosmogony of 225

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The new light of reason Lucretius; according to the second book of De rerum natura the process of nature, evolving out of chaos, arrives at a standstill which lasts for a certain term, until the ‘walls of the creation’ (‘moenia mundi’) collapse again in a process of self-destruction. Buffon’s earth had – according to his published computations – consolidated in 3,000 years, after a comet had hit the sun and chipped off a part, which cooled down so as to enable life on earth to appear. He predicted that the world would last only 45,000 more years before the incessant process of losing warmth would lead to the complete freezing of the planet and the extinction of life. Moreover, Buffon shocked all scientists, who tried to maintain the conformity of modern science with the Bible, by declaring that the purity of scripture should not be polluted with uncouth physics (Rossi 1979, p. 126). This statement reopened the question of combining the problem of cosmogony with Galileo’s mechanistic system of the universe, wherein Descartes had failed because of his chimerical system of whirls (‘tourbillons’). Newton had refrained from making that attempt, even dabbling instead in a fruitless endeavour to retain and improve the antiquated chronology, as Herder remarked irreverently (Ideas, bk xii, iii: HW, iii/1, p. 447). Herder himself, in this respect, was siding with Buffon and the teachings of his former master Kant, in the Universal Natural History and Theory of Heaven (Allgemeine Naturgeschichte und Theorie des Himmels, 1755); so he basically had no scruples about acknowledging the antiquity of the earth beyond what was permitted by sacred chronology, and he firmly opposed the attempt of Jean-Andr´e de Luc to maintain the link between the literal text of the Bible and modern geological science (Lettres physiques et morales sur l’histoire de la terre et de l’homme, Physical and Moral Letters on the History of the Earth and Man, 1778–82). But he nevertheless hesitated to conjecture that the earth’s first inhabitants might be as old as the planet itself. When he published the second volume of his Ideas in 1785, he withdrew the concluding chapter of book X from print at the very last moment. It had been inscribed Revolution of the Earth According to the Oldest Traditions (Revolution der Welt nach den a¨ ltesten Traditionen; cf. HW, iii/1, pp. 1140–54). In this chapter on ancient chronicles, published posthumously in 1814, he was to advance a geological hypothesis about the Flood which challenged de Luc. Following Buffon, he sought to avoid the catastrophism or violent interruption of the natural processes of the earth which was integral to sacred history. From the moment when the ‘gates of creation had been closed’, as he said with Lucretius (Ideas, bk v, iii: HW, iii/1, p. 163), Herder’s mankind lives, tucked away safely in the folds of the Himalayas, in order to descend from Paradise, 226

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Naturalism, anthropology, and culture which Herder situated in Kashmir, so as to populate the globe – after a flood provoked by a shift of the axis of the earth (HW, iii/1, pp. 1143– 7). This hypothesis, vaguely based on that of Johann Heinrich Lambert, is obscured in the published version of the Ideas (p. 1143). If the revolutions that shaped the earth are of such remote antiquity as modern science and mythology together suppose, then mankind must be very young (Ideas, bk x, vi: HW, iii/1, p. 379). Herder formulated a conception of history and culture as developed in two stages, framed in a horizontal and vertical pattern. The first stage, the ‘geographic history’, consists of mankind’s spread over the whole earth and coming to live among its differing climates. Man is almost the only animal able to survive in all zones, thus conquering all continents, including the arctic as well as the torrid zones; and it is his technical ability to invent the means indispensable to his subsistence that guarantees his success. That is what ‘culture’ actually means for Herder; already in this early stage of human history we may speak of ‘first, necessary, and general natural laws of humanity’; they are merely transformed in more elaborate stages of civilisation, even if fortified townships and the palaces of kings seem to belie their descent from nomadic camps and the primitive huts of leaves and straw of the patriarchs. It is only in mild climates, where nature’s abundance frees mankind from the satisfaction of just the barest necessities, that more sophisticated forms of culture may initially develop (Ideas, bk viii, iv: HW, iii/1, p. 297). But this vertical pattern of cultural evolution may be continued even under less favourable conditions, when men’s technical skills are developed to overcome rough climates. The cultures of ancient China, India, Mesopotamia, Egypt, Greece, and Rome could thereby be extended to northern Europe, creating the civilisation of modern times. 3

The history of the human mind

Still more damaging to the Christian rationalisation of history was the publication of Spinoza’s Tractatus theologico-politicus in 1670, which greatly influenced Vico and Herder alike. In the sixteenth chapter of his work, Spinoza, in the wake of Grotius’s Prolegomenon already mentioned, stated that the apparent arbitrariness of human nature was nonetheless subject to natural law. For, he observed, ‘nobody will deprive himself of what he judges to be good and conducive to his welfare, if he should not be withheld by the expectation of something more useful or by the threat of a greater disadvantage’. ‘This law is inscribed so firmly in the human breast, that it has to be placed among the immutable truths nobody is allowed to ignore’ (Spinoza 227

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The new light of reason 1972, i, p. 472). Neither man’s reason nor God’s providence therefore regulated the course of history, which is determined rather in a totally arbitrary way by mankind’s instincts and passions of self-preservation. God’s assistance to man assumes two forms: outward, those natural resources that allow him, by exerting his own capacities or as free gifts of nature, to satisfy his wants; and inward, the dispositions of his mind. In this way, there can be no chance or contingency in nature; everything is preordained and occurs by necessity. ‘I understand by “God’s direction” that established and immutable order of nature . . . according to which everything . . . is determined . . . by God’s decree and direction. . . . By “chance” I understand nothing else but God’s direction’ (pp. 102, 104). This singular interpretation of the world as governed by universal necessity, paradoxically embracing even the arbitrariness of human behaviour, was reinforced in 1689 by Locke’s interpretation of the human mind. In chapters 20 and 21 of book ii of his Essay concerning Human Understanding he argued that the sphere of liberty was divorced from the realm of instinct and its basic condition of ‘uneasiness’. The will and actions of man are subject to the satisfaction of physical and moral desires and must not be presumed to constitute freedom of action, which according to Locke is a petitio principii, based on fundamental misinterpretations of the way the human mind works. Spinoza’s and Locke’s interpretations of the human mind, combined with the key notion of ‘imbecillitas’ (‘weakness’ or ‘deficiency’) in Lucretius and Pufendorf, provided for Vico the clue that made it possible to understand the course of history, including the history of the gentiles, in a more general way. In Spinoza’s Tractatus it was shown by this allegedly impious author that the Jewish nation had not been able to overcome the determined character of the human condition, despite its having been chosen by God and assisted by his presence and the revelation of his power. In his Essay on the Mores and Spirit of Nations (Essai sur les moeurs et l’esprit des nations, 1756) Voltaire was to mock such notions of universal necessity, particularly in opposition to Bossuet, while for his part Spinoza inferred that nature’s assistance had been required to help the gentiles as well, in their endeavours to ensure their self-preservation. Following much the same train of thought, cast in the idiom of a theory of determinate cultural evolution drawn from book V of Lucretius’s De rerum natura, Vico detected definite patterns of social development in mankind’s history, leading from savagery and primitivism to the establishment of civic life through the enclosure of townships. Those patterns mapped the natural course of change of the human mind itself, which grew slowly but inevitably transformed its original domination by 228

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Naturalism, anthropology, and culture fancy and imagination into the rationality of civilisation and culture. If one followed the productions of the human mind and assumed their uniformity of function, the apparent gulf between man’s state of nature and the condition of civil society could be bridged, despite the arbitrariness of the choices mankind had made. The invention of a contract, which implied the violation of natural equality as the foundation of law, would create an artificial gap intruding upon the regular patterns that marked the course of civilisation, Vico supposed. Already in the Prologue of his Universal Right, he had referred to a ‘genuine eternal law, which has been received as law by all men, at any time and in any country’, and he deemed that this law must derive from the constitution of man himself (Vico 1974, p. 31). His New Science of 1744, which embraces the ‘Principles of a New Science regarding the Common Nature of Nations’, was to adopt that point of view as its guiding principle. ‘In that night of impenetrable darkness, which covers primeval . . . antiquity, there dawns this light of truth . . . which cannot be called into doubt’. He observed, that this world of civil society certainly has been made by men. Therefore its principles may . . . be discovered within the modifications of the human mind . . . itself . . . . Philosophers . . . dedicated . . . to the acquisition of knowledge [have only studied] this physical world, a science . . . within God’s reach because it is him who created nature. They neglected, however, to reflect on this world of nations or civil world, the science of which – because of its being made by mankind – was within the reach of men. (New Science, bk i, ch. 3: Vico 1971, p. 461)

What was it that made Vico appear such a singular figure in his day? The tradition of Vico’s isolation seems to be based on the judgement published in the Acta Eruditorum in 1727, in which an author – unknown to Vico himself – asserted that the first edition of the New Science of 1725 had met with greater disapproval than acclaim in Italy, because of the ‘mass of lengthy conjectures’ made by its ‘more ingenious than truth-seeking author’. Vico reports this judgement in his violent Vindications of Vico, where he defends himself against the preposterous allegation of obscurity (Vici vindiciae, 1729: Vico 1971, pp. 342–7). As a matter of fact, he enjoyed a certain fame during his lifetime and in the second half of the century, although primarily on the grounds of the reputation he had gained as the author of the Universal Right. After his death, his pupil and professor of canon law at Rome, Emanuele Duni, drew strongly on his master’s theory in his Essay on Universal Jurisprudence (Saggio sulla giurisprudenza universale, 1760), and his unmistakable influence upon the works of Antonio Genovesi, Ferdinando Galiani, and Mario Pagano has 229

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The new light of reason been established (de Mas 1969). Even in 1764 Finetti still calls Vico ‘a famous philosopher, man of letters and jurist’ (‘celebris Philosophus, Philologus ac Jurisconsultus’; Finetti 1764 ii, bk viii, ch. 2, p. 113). There were, however, three aspects of his work which helped to spread the impression of an isolated and original thinker – his methodology, his conception of truth, and his account of mankind’s barbarian natural state, conceived by Vico paradoxically as an age of ‘poetic wisdom’. As regards his methodology, it is often described as a late version of the Renaissance art of topic (that is, the science conceived as the foundation for both logic and rhetoric), but granted a new turn under the influence of Francis Bacon while remaining unaffected by the harsh critique of that tradition proffered by the school of Port Royal. Perhaps such a view neglects one aspect of Vico’s method, growing out of the academic milieu with which he was completely familiar: the tradition of academic disputation that had given rise to a specific philosophical and literary genre, the ‘conclusions’. In these conclusions one or several basic principles were, through a lengthy chain of propositions, applied to different fields of knowledge and their universal truth thereby definitively established. The most notorious conclusions had been published already in 1486 by Pico della Mirandola (Conclusiones philosophicae) whose public defence had been interdicted by the pope. Vico’s concatenation of ‘principles’ (‘degnit`a’) is based on such disputations, still sustained with some vigour in the eighteenth century, but of course greatly influenced by Bacon’s use of this method. Bacon, once again, stands at the crossroads of the complex theme of the relationship of idea and reality, philosophical truth, and empirical certainty in Vico’s work, especially the Thoughts and Conclusions on the Interpretation of Nature (Cogitata et visa de interpretatione naturae, sive de inventione rerum et operum, 1607). This influence is intensely felt where Vico develops, in the first edition of his New Science (1725), his view of the order of human actions that presents itself in the world of history and which differs widely from the idea of logical order developed by Cartesianism. ‘For thus was it disposed by nature: that men first did things through a certain human sense, without attending to them, and then, much later, they applied reflection to them and, by reasoning about their effects, contemplated their causes’ (bk i, ch. 8: Vico 2002, pp. 21–2; cf. Vico 1971, p. 180). Bacon had diagnosed the problem of human ignorance in important matters of natural science as the principal reason for mankind’s scant technical progress; his conclusion had been that it was indispensable to find a new way of reasoning that inverted the old abstractions of logical 230

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Naturalism, anthropology, and culture and classificatory proceedings, by applying itself first to the knowledge and handling of physical objects. This is a key topic for Vico’s concept of a ‘new science’: knowledge can be derived only from handling objects (‘fare’) and the experience gained by this process. This knowledge may not be ‘true’ (‘verum’) in an absolute sense, because it is not general, but it is certain (‘certum’) because it derives from experience of what has been done, in operating upon the physical world (‘factum’). When feeling despondent about formulating the tasks of a new natural science, Bacon had referred to ancient times, turning to the founders of laws, the killers of beasts, and the builders of towns who, as ‘inventors of things’, were rewarded with divine honours. These heroes of antiquity should be the models of the new scientists, he claimed. Vico came to apply Bacon’s logic of invention to what he conceived of as the rise of civilisation as a whole, progressing from arbitrary beginnings in the accumulation of certainties to the height of intellectual knowledge: ‘The order of ideas must advance according to the order of real things’, he concludes, in the third edition of the New Science (bk i, ch. 2, ‘degnit`a’ lxiv: Vico 1971, p. 447). This reversal of traditional logic, based on Bacon, was further enhanced by Spinoza and Gravina (cf. Pross 1987b, pp. 95–100). But the relationship between this concept of ‘truth’ and Vico’s enquiry into the common nature of different peoples at different times that forms the basis of his ‘new science’ requires a more precise definition; it is a kind of ‘philosophy’ that relies on the authority of ‘philology’, as expounded in the Universal Right. The field on which this science is meant to operate can be excavated by antiquarian erudition in its reporting of the seemingly voluntary behaviour of the gentiles, outside the realm of the sacred history of the Jews. All other nations, therefore, are subjected to their own confused and bewildered notions of the savage world left behind by the Flood, from which protection can only be gained by barbarous and wilful acts of an authority based on the rule of the strongest. The key notions required to reconstruct this history must be taken from etymology, because the development of the mind follows a certain pattern that is best expressed in words: Human mind is by its nature inclined to obey the senses when looking outside its body; and it is therefore only with difficulty that it can be aware of itself with the help of reflection. This principle serves as a universal axiom of etymology for all languages, because in language words are taken from bodies and their qualities in order to signify the objects of the mind and the spirit. (bk i, ch. 2, ‘degnit`a’ lxiii: Vico 1971, p. 447)

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The new light of reason It is above all through words that the path of cultural evolution, leading from forests and huts to villages and townships and finally academies, may be reconstructed by this new science.

4

The anthropological history of man

One of the first attentive readers of Vico outside of Italy was to make use of his insight and method in explaining why and how it was possible to reconstruct the history of antiquity. In the third volume of his monumental Primitive World (Monde primitif, 1777), Antoine Court de G´ebelin employed a method similar to Vico’s in pointing to the need to assemble the scattered remnants and traces of mankind’s self-made history contained in myths and fables. While to modern interpreters they might appear primitive, illogical, or even unintelligible, myths and fables expressed the basic needs (‘besoins’) of the cultures in which they were diffused and they were therefore to be considered as valuable documents of the history of the human mind, G´ebelin maintained. Whereas Vico’s philosophy was informed by the certainty that human history was accessible on account of its having been made by man, despite its arbitrariness in the primeval state of human ferocity, G´ebelin and Herder sought to reconstruct the past in the light of the knowable needs that had shaped mankind’s instruments of culture, no less in periods of remote antiquity than in contemporary civilisation. ‘If one contemplated the remains of antiquity as the effects of a first cause, and searched for that cause in nature, which . . . will always be the only guide to the workings of the human mind, it would not be impossible to uncover the path pursued by the first generations and which might lead us back to them’, observed G´ebelin. So as to retrieve all the links of this immense chain, it is imperative to identify an inherent principle in human nature, whose effects . . . would be invariably the same in all ages and climates and for all nations. . . . Everything is bred from our needs . . . whose persistence entails the perpetuation of the first means employed to satisfy them . . . It is enough to know man as he is at present in order to know mankind in all ages. The series of the physical and moral order are each necessary in themselves . . . Everything that . . . presents us with arts, laws, and customs has grown out of our wants and been improved by new needs; and it is because of their refinement that their roots can be traced to remotest antiquity . . . [whose] monuments are nothing other than the means formerly employed in order to satisfy humanity’s needs, just as our own monuments bear testimony to our own needs and resources. If we confront that testimony with regard to both the present and the past . . . we will have grasped the true system and

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Naturalism, anthropology, and culture be masters of history in all ages . . . imagining ourselves as witnesses to the forging of a chain within which we constitute the last link. (Court de G´ebelin 1773–82, iii, pp. 3–4)

When in a draft of his Pamphlet of 1774 Herder asked whether any regular principle of mankind’s physical and historical development could be formulated (HW, I, p. 685), he took up the same question that Vico had already treated, albeit only from a juridical and historical perspective, now reincorporating the ‘physical’ side of man with reference to our species’ natural history or ‘biological’ existence as it would later be termed, integrating within Vico’s scheme the dimension of anthropology. Such an approach had already been adopted by the English scholar, Richard Cumberland, in his Laws of Nature (De legibus naturae), published in 1672, the same year that had witnessed the appearance of Pufendorf’s famous Laws of Nature and Nations (De jure naturae et gentium). Cumberland had directed his enquiry on the Laws of Nature mainly against Hobbes, advocating against the explanations of human behaviour which Hobbes had elaborated in De corpore and De cive the most recent physiological research of Thomas Willis and Richard Lower on the functions of the human heart and brain. In his second chapter Cumberland laid particular emphasis upon the physiological nature of man, which he took to favour our species’ sociability, not only on the same level as other animals but also by virtue of the specific organisation that was unique to the human body (Cumberland 1672, ch. 2, §§ 23–4, pp. 132–40). The lack of any Galenic rete mirabile in the human brain, such as was to be found in most quadrupeds, and whose absence from the human species was regarded by Lower in his Tractatus de corde (1669) as evidence of higher organic development, comprised physiological proof, Cumberland supposed, that our imagination, memory, and mental faculties in general depended on the development of our brain and the rapid circulation of blood which was favoured by mankind’s upright posture (Parkin 1999). Cumberland had relied on anatomical testimony to advance his thesis that mankind was superior to animals by virtue of being anatomically and physiologically unencumbered in any particular way – a proposition he directed particularly against Hobbesian perspectives on the greater sophistication of animal instincts and the constitutional ‘imbecility’ of man. His arguments were to be revived in 1784 in the first volume of the Ideas towards a Philosophy of the History of Mankind, in which Herder takes issue with Rousseau’s, Pietro Moscati’s, and Kant’s perspective upon man’s upright posture, conceived as a sort of physical manifestation of original sin, unnaturally setting humanity apart from other animal species and thereby exposing it to ailments and 233

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The new light of reason diseases unique to our species (HW, iii/1, p. 118). That controversy about the origins and benefits of human upright posture shows that two venerable dichotomies with respect to man’s place in nature remained prevalent, notwithstanding the main thrust of Cumberland’s critique of Hobbes more than a century earlier – in effect, the putative oppositions of mind and matter, on the one hand, and of civilisation and the savage state, on the other. In 1756, Hermann Samuel Reimarus – who was to earn posthumous fame for his heretical views on Christianity – expounded, in one of the most widely circulated books of German popular philosophy of the eighteenth century, a traditionalist conception of man’s position in this world. We may imagine the earth totally unpopulated, he remarked in his The Foremost Truths of Natural Religion (Die vornehmsten Wahrheiten der nat¨urlichen Religion, 1756; ch. 3, § 2); for God could have created mankind without bodies cast in his image – that is, he might have created us purely as souls which require no solid place within which to reside. ‘Are the maggots essential to the cheese?’, Reimarus asked in a bizarre comparison of the relationship of men and their dwelling place, to which Herder opposed Cicero’s adage about the world as ‘the common house of gods and men’, in which everything is made for the benefit of its inhabitants (De natura deorum, bk ii, § 154). Nature brings forth life on this earth, which follows a pattern of development until it reaches the most complicated form of organisation, in man; human life, therefore, cannot be regarded as set apart from other forms of animate beings. This perspective on the naturalisation of humanity, without regard to religious scruples pertaining to the immateriality of the soul, Herder shared with Charles Bonnet, certainly a most godly man who, however, did not hesitate in his Contemplation of Nature to pronounce that, in order to conceive a notion of man’s soul, one must first scrutinise his corporeal existence (Contemplation de la nature, 1770, i, p. lxxxviii: ‘C’est toujours par le Physique qu’il faut passer pour arriver a` l’ˆame’). The same recklessness characterises Herder’s approach to the concept of ‘culture’, in his refusal to admit a distinction between ‘culture’ as means of self-preservation and as the framework of an enlightened ‘civilisation’. Much of the evidence from missionaries and travellers since the discovery of the New World had contributed to an unshakeable belief that God had created two fundamental types of human beings fit for different forms of communal life: civilised and savage nations. By the grace of God it might one day prove possible for civilised tribes to attain enlightenment themselves and thereby scale the heights of European culture. According to this scenario, culture was 234

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Naturalism, anthropology, and culture conceived as having been bestowed on enlightened people, much in the manner that the Old Testament had been granted to God’s chosen people. To lack culture or enlightenment was to be without the prospect of salvation. Whereas the German historian Christoph Meiners dangerously overstated this view in his Elements of the History of Mankind (Grundriss der Geschichte der Menschheit, 1785) by distinguishing between two fundamentally different ‘races’ of Celts and Mongols, of which only the first would be capable of civilisation, Herder insisted from the outset of his Ideas that there was no tribe or nation that did not have a claim to attribute to itself some ‘culture’, even in the most rudimentary stage of social organization (HW, iii/1, Vorrede, p. 9). Herder’s philosophy of history, conceived as an account of the development of man as a natural and social being, is a combined elaboration, indeed, of the ‘three histories’ of Enlightenment, that is, natural history, the history of the human mind, and the history of society, as propounded by other commentators in the mid- to late eighteenth century. In so far as it concentrated upon the place of mankind, natural history in the age of Enlightenment – largely inspired by comparative anatomists of an earlier age, such as Claude Perrault and Edward Tyson, as well as by the contemporary physiology of Pieter Camper and Louis-Jean-Marie Daubenton – was chiefly devoted to establishing the human race’s links with, or distinctions from, other species in the great scala naturae or ‘chain of being’. As pursued in the Natural History of Buffon or by the philosopher Bonnet, definitions of man were taken to turn upon his relation to the next highest primates in that chain – the great apes – which, at least until the late 1770s, when the chimpanzee came to be identified as a different species, were collectively termed ‘orang-utans’, a Malay expression meaning ‘men of the woods’. When arguments for the immortality of the human soul and the spirituality of man’s understanding had come to seem less theologically compelling than in previous generations, it appeared, likewise, that neither reason nor language could any longer be regarded as the centrally distinguishing feature separating man from all other animals, in part because animals were also manifestly sentient creatures, in part because reason had come to be identified as a virtual rather than intrinsic faculty and language as a skill which had to be learned in society, in each case placing the burden of man’s superiority over other animals more on his education than his nature. Descartes himself had paved the way to eighteenth-century materialism by describing animals as mere machines, and, in 1748, Julien Offray de La Mettrie adopted the same perspective with regard to the human race, sustaining in his L’Homme machine 235

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The new light of reason that man formed part of the animal kingdom and that the same natural laws governed all animate beings. Pursuing a theme he derived especially from Locke, La Mettrie contended that our apparently supernatural gifts of reason and language were only the consequences of the organisation of our faculties, whose development followed a prescribed pattern. Starting from such premises eighteenth-century commentators on the histoire de l’esprit humain tried to explain that our cultures are neither the product of human reason nor the outcome of our unique spirituality, but are instead expressive of the emotional values attributed to external objects which persons try to manipulate and come to identify by ascribing arbitrary signs to them. The influence of Condillac in developing such ideas, originating ultimately in Locke, was decisive, and its principal contribution to the philosophy of history in the Enlightenment turned on its conception of the human understanding in terms of the development of signs – that is, its theory of language (Aarsleff 1982). First in his Essay on the Origin of Human Knowledge (Essai sur l’origine des connoissances humaines, 1746), then in the Trait´e des syst`emes (1749), and finally in his Trait´e des sensations (1754), Condillac attempted to make plain that to engage in thinking or to have thoughts is just a consistent way of linking signs, which are themselves to be understood as the articulation of sensations. The analysis of every mental process, he argued, can trace its source ultimately to the first emotional impact – perhaps of desire or fear or interest – stirred by an external object, which would have inspired our forebears in the early childhood of human history to covet or recoil from it in an animistic way. In their respective courses of development both the mental faculties of children and the different stages of our civilisation should accordingly be understood in terms of the evolution of signs and the progress of language. As constructed by Hume, Kames, Ferguson, Millar, Smith, and other luminaries of the Scottish Enlightenment, what came to be termed ‘the history of civil society’ was conceived in a similar way but with reference to other practices and institutions in addition to language, as a natural history of man which described our species’ ascent from the state of nature to the domain of culture or civilisation. When couched in idioms drawn from the incipient science of political economy, conjectural histories of civilisation, particularly after the mid-eighteenth century, were conceived of as mankind’s stadial passage from its original condition of barbarism by way of improvements of its modes of sustenance, first, in tribes characterised by hunting and fishing, then in pastoral and predominantly nomadic communities, then under regimes of agricultural production, and, finally, 236

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Naturalism, anthropology, and culture in commercial societies with their civil laws regulating property and trade. The refinement of arbitrary signs and the progress of the division of labour would thus each come to constitute a crucial measure of the progress of civilisation. What Condillac had endeavoured to achieve was nothing less than the transformation of traditional metaphysics into a ‘genetic epistemology’ as Georges Gusdorf has termed it, or a ‘temporalising’ of the chain of being (Gusdorf 1971; Lovejoy 1936). Instead of attempting to fathom the essence of mind, Condillac maintained that he had instead sought to demonstrate the ways in which the mind works (Essai sur l’origine des connoissances humaines: Condillac 1973, p. 99). Instead of assuming the existence of parallel but unconnected worlds of physical reality on the one hand, and mind on the other, he tried to sketch a laboratory experiment of the awakening of human life and, with it, the development of the so-called faculties of mind, out of pure matter. The statue he portrays in his Trait´e des sensations passes from its condition of mere receptivity in becoming impressionable and sensitive, and subsequently reminiscent and reflective, through the retention of its first impressions by the sheer fact of being aware of them. To remember, to compare, to judge, to distinguish, to imagine, to be astonished, to have abstract ideas . . . to know general and particular truths, are but different ways of being attentive. To have passions, to love . . . to hope, to abhor . . . are but different ways of desiring. Being attentive and to desire are originally just sensations. We must conclude that sensation embraces all the faculties of the mind. (Trait´e des sensations, I, vii, § 2: Condillac 1947–9, i, p. 239b)

Even the highest stages of abstract reasoning, Condillac believed, are nothing other than transformations of sensual impression. Herder was to take up this hypothesis, together with its elaboration in Diderot’s Lettre sur les aveugles (Letter on Blindness, 1749), when in 1765, shortly after having abandoned his studies with Kant in K¨onigsberg, he remarked that ‘all philosophy must be reduced to anthropology’ (cf. Pross, in HW, ii, pp. 1133–4), adding that the fields of logic, aesthetics, and psychology should be encompassed within the boundaries of the histoire de l’esprit humain. Herder’s interest in the physiology of sense-impressions and its implications for an anthropology that embraced the history of the human mind informed his projects on the human senses which he drafted in the late 1760s, together with the fourth of his Critical Promenades (Viertes Kritisches W¨aldchen, 1769); the results of his reflections were the first version of his Plastik (1770) as well as his celebrated Treatise on the Origin of Language for which in 1771 he won the prize in a 237

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The new light of reason Berlin Academy competition and in which for the first time he took up Cumberland’s speculations on the physiological basis of our cognitive and social faculties. The same problem and the same themes were to be pursued in the three versions of his treatise on the relationship between cognition and sensitivity (Vom Erkennen und Empfinden der menschlichen Seele, 1774, 1775, 1778) and in the first and second part of his Ideas (1784–5). The implications for comparative cultural history and ethnology of the study of the physical attributes of human nature had of course been central to Montesquieu’s theory of the physiological effects of climate as elaborated principally in the fourteenth book of the Spirit of the Laws, based on the writings of Jean-Baptiste Dubos and John Arbuthnot, and they can be traced to Hippocrates. In 1723 Jean-Franc¸ois Lafitau had addressed the subject of men’s moral relations in connection with their organic nature and physical environment by way of comparing cultures across continents and centuries, attempting to show in his Moeurs des sauvages ameriquains, compar´ees aux moeurs des premiers temps that the Hurons of North America bore great similarities to the Greek and Trojan heroes described by Homer. Lafitau’s analogies and comparisons essentially implied that all cultures matured in similar ways and pursued similar trajectories of development, as evidenced by their tools, their artefacts, and their conventions and beliefs at comparable points of their evolution. Such perspectives were not only concerned with the interpenetration of physical and cultural anthropology which, after the age of Enlightenment, were to become separate disciplines taught in different university faculties. In addressing the totality of men’s relations in their diverse geographical settings they also greatly contributed to the study of the roots of civic and ethnic cohesion which made nations and national allegiances possible, as well to the incipient science of social psychology. 5

The regularity and plurality of culture

For Enlightenment thinkers who supposed that mankind was basically everywhere the same, it was crucially important to account for diversity and the world’s plurality of races and cultures. If the eighteenth-century discoveries of Australia and the islands of the Pacific had identified primitive cultures that appeared to resemble ancient tribes in European civilisation’s own infancy, how, by contrast, could the transformation of the Mongols from imperialist warriors to peaceful nomads over several centuries, or, alternatively, the decay of the once majestic culture of China over a period of 2,000 years, be explained? In his Enquiry concerning Human Understanding (1748), David 238

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Naturalism, anthropology, and culture Hume advocated the pursuit of a new kind of science, a natural history of man, to supplant the old histories of dynasties with their careers twisted in indeterminate ways by fortuitous and arbitrary actions. ‘Mankind are so much the same, in all times and places, that history informs us of nothing new or strange in this particular’, he remarked. Its chief use is only to discover the constant and universal principles of human varieties of circumstances and situations, and furnishing us with materials from which we may form our observations and become acquainted with the regular springs of human action and behaviour. These records of wars, intrigues, factions, and revolutions, are so many collections of experiments, by which the politician or moral philosopher fixes the principles of his science, in the same manner as the physician or natural philosopher becomes acquainted with the nature of plants, minerals, and other external objects. (Hume 1975, pp. 83–4)

The sum of events that forms the history of mankind does not differ markedly from the material studied by the scientist or natural historian, who must rely on the constancy of natural forces in order to formulate the laws of matter. The facts recounted by historians and ethnographers, analogously, must be tested by scientists of human behaviour to establish the existence of uniformity in human actions and reasoning. The business and activities of men had to be closely examined in the rich variety of their cultural stratagems, Hume insisted. The science of human nature which he envisaged was not premised on narrow assumptions about men’s universal conformity to a limited set of fixed principles; in establishing the diversity of the motives or springs of human action it was necessary to observe and record individuals’ behaviour in all its complexity. ‘We must not . . . expect that . . . all men, in the same circumstances, will always act precisely in the same manner, without making any allowance for the diversity of characters, prejudices, and opinions’, he wrote. Such a uniformity in every particular, is found in no part of nature. On the contrary, from observing the variety of conduct in different men, we are enabled to form a greater variety of maxims . . . I grant it possible to find some actions, which seem to have no regular connection with any known motives, and are exceptions to all the measures of conduct which have ever been established for the government of men. (Hume 1975, pp. 85–6)

In 1767 Ferguson developed a similar line of reasoning with respect to our comprehension of human motives, actions, and patterns of behaviour. ‘Men, in general’, he observed in his Essay on the History of Civil Society, 239

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The new light of reason are sufficiently disposed to occupy themselves in forming projects and schemes: but he who would scheme and project for others, will find an opponent in every person who is disposed to scheme for himself . . . Every step and every movement of the multitude, even in what are termed enlightened ages, are made with equal blindness to the future . . . No constitution is formed by concert, no government is copied from a plan. (Ferguson 1995b, pp. 119–20)

It was therefore plain, he concluded, that ‘nations stumble upon establishments, which are indeed the result of human action, but not the execution of any human design’. Ferguson attributes this remark to the famous M´emoires of the Cardinal de Retz, published posthumously in 1717, and the philosophy of history it articulates was to catch wide attention in the second half of the nineteenth century by way of Marx’s remark, in the opening section of his Eighteenth Brumaire of Louis Bonaparte (1852), to the effect that ‘men make their own history but not of their own free will; not under circumstances they themselves have chosen but under the given and inherited circumstances with which they are directly confronted’. While morality pertains to what humans do rather than to how they are made, while ‘the world of civil society is shaped by its own subjects’, as Vico had remarked in the third edition of his New Science (bk i, ch. 3: Vico 1971, p. 461), the science of human nature to which so many leading thinkers of the Enlightenment subscribed was addressed to causes and consequences rather than a narrative of intentions. Herder’s adoption of such perspectives on both the regularity of human behaviour and its variety in diverse regions and times accounts for the sometimes puzzling co-existence of universalism and conventionalism in his philosophy of history, generating, on the one hand, his insistence upon ‘laws’ of the historical process, based on human nature itself, and, on the other, his emphasis on the singularity and uniqueness of the life of nations, in their dependence upon peculiarly local habitats and conventions. According to his philosophy, cultures and the crafts associated with them formed patterns and methods of mankind’s self-preservation, giving rise to appropriate rituals of social behaviour. Practitioners of the science of man as it came to be developed most particularly by Scottish thinkers of the mid- to late eighteenth century frequently addressed such questions with reference to systems of property and labour, technical innovations, and the tools of production characteristic of different forms of society and different historical epochs, out of which the science of economics, on the one hand, and what came to be termed ‘historical materialism’, on the other, were to arise. In France similar questions were to be posed by Goguet in his De l’origine 240

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Naturalism, anthropology, and culture des loix, des arts, et des sciences, and Goguet’s account of the development of technical knowledge and its applications in antiquity from the Egyptians to the early Greeks was to influence both Winckelmann, in his History of the Art of Antiquity (Geschichte der Kunst des Altertums, 1764), and Herder, no less in the polemical pamphlet of his youth, Another Philosophy of History (1774), than in his mature Ideas towards a Philosophy of the History of Mankind (1784–91). But Herder’s invective against the Eurocentrism of his enlightened contemporaries, as it appears in both works, owed more to a related but somewhat different theme about the links between technology and morality, and about the interpenetration of the natural and the social world, propounded or implicit in the writings of Cumberland, Condillac, Hume, Ferguson, Goguet, and other Enlightenment philosophers of history. Like Montesquieu in his focus on the spirit of the laws, and upon the natural forces and psychological dispositions which determined the character of nations, Herder was anxious to describe the social systems of diverse peoples in their totality, with reference to the geographical and psychological factors which shaped their cultures in particularly distinctive ways, appropriate to local circumstances. ‘Each state has its period of growth, maturity and decay to which its arts and sciences conform’, he observed in his Dissertation on the Influence of Government on Science and of Science on Government (1779), which presents itself as a draft of the complex treatment of this theme in the Ideas (cf. Herder 1877–1913, ix, p. 375). ‘The specific sciences and arts of Greece, unsurpassed by those of any other age or peoples after more than two thousand years, have been daughters of her legislation, of her political institutions, especially of the freedom . . . of common enterprise and competition’ (Herder 1877–1913, ix, p. 328). What, in his Pamphlet of 1774, he had objected to most in the philosophies of ‘the so-called enlightenment and civilisation of the world’ was the narrowness of their approach to particular cultures even while they traced the long trajectory of cultural progress as a whole (HW, i, p. 664). The ‘general, philosophical, philanthropic tenor of our century’ in the works of historians and philosophers, such as Voltaire, Robertson, or Iselin, whom he addressed explicitly in his Pamphlet, was, in its insistence on the achievements of the modern world, insensitive to the characteristic features of past ages (HW, i, pp. 618–19). That philosophy seemed to him incapable of comprehending, for example, the social meaning and function of corporations, guilds, craftsmen, scholarship, and the unsophisticated simplicities of late medieval (or early modern) cultures in which these institutions and 241

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The new light of reason professionals proudly thrived. Herder often expressed some dissatisfaction with the otherwise greatly estimable Montesquieu, whose generalisations about diverse peoples he took to be rather unspecific and unsystematic, husks of ideas plucked from their contexts. Yet he pursued themes that in Scotland and elsewhere were associated with Montesquieu above all other eighteenth-century thinkers, and Herder’s censuring of Montesquieu was as much as anything else a lament on account of his not having been true to himself, on account of the – inevitable – deficiencies of commonplace summaries (HW, i, p. 611). Even while insisting, in his Ideas, that there is just one human race or species, Herder describes its nurture, maturation, and metamorphosis in terms already made popular before him by Montesquieu, and which, while borrowed ultimately from Lucretius, came to be cast by Montesquieu in an idiom which would shape the language of history of the late eighteenth century. Within that singular species of mankind, Herder, no less than Montesquieu, was convinced that language constituted the identity and coherence of each social group and formed barriers against even closely related neighbours and kinsmen (Treatise on the Origin of Language: HW, ii, p. 345). To explain national differences within the framework of one species whose members were all prompted by the same law of self-preservation, he sometimes concentrated upon migratory or seafaring peoples compelled to adopt new cultural patterns which would eventually lead to their forming a new nation. ‘The Phoenicians . . . became, despite their affinity to the Egyptians, the contrary of their national culture’, he observed in his Another Philosophy of History (1774). For the Egyptians . . . hated the sea, hated foreigners, and just remained at home in order to develop all the . . . arts of their own country. The Phoenicians retired to a coast behind a mountain range and a desert, and they did so in order to create a new world on the sea. Suddenly human industry abandoned the heavy work of building pyramids and the tilling of the earth and stooped to the playfulness of petty occupations. Instead of shaping . . . obelisks, the art of masonry turned to useful ships. The mute, erect pyramid was transformed into the mobile, talking mast of the ship. (HW, i, pp. 603–4)

The Egyptian empire, defined by the borders of the Nile valley and threatened by nomads beyond them, had to create within its encircled and endangered space a political, religious, and cultural system that was of necessity monolithic, Herder believed. The Phoenicians, by contrast, having settled in a more confined area between the Lebanese mountains and the Mediterranean, had no option but to turn to the open sea and to navigating gods, 242

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Naturalism, anthropology, and culture their ships being made to serve the same symbolic function as the obelisk did for the Egyptians. In pursuing not only the cultural but also the theological implications of the human race’s task of survival under different conditions, Herder drew some inspiration from Charles de Brosses’s Du culte des dieux f´etiches (1760), in which the evolution of religious practice from fetishism to the worship of statues or saints was portrayed as preserving the original function of rites even while their objects of devotion were transformed. ‘All the instruments invented or discovered by art or science, what else are they but signs or substitutions, denoting a peculiar feature or helping to achieve a premeditated aim?’, he asked in a manuscript draft of his Ideas (Herder 1877–1913, xiii, p. 368). The words and symbols we employ, and the artefacts we manufacture, are nothing other than our own denotations or constructions of reality, in portraying our languages, arts, and social institutions in general as constitutive elements of what we term ‘culture’. Herder’s reputation as a Counter-Enlightenment thinker as portrayed by Isaiah Berlin is belied by his theory of culture and the sources upon which he drew (Berlin 1976). From d’Alembert, Condillac, Court de G´ebelin, Monboddo, and especially James Harris and other eighteenth-century contributors to the histoire de l’esprit humain, he derived notions of the symbolic meanings of language and the essential human needs which language articulates. From Spinoza, Cumberland, and Hume, he adopted perspectives upon human nature in general which joined the moral dimensions of our behaviour to our physical constitutions and the pressures posed by our environments. From Ferguson he learned not only that men’s social history reflects the unintended consequences of their actions, but also that nature and art are intermingled and often barely distinguishable in our conduct. ‘Art itself is natural to man’, Ferguson had asserted in his Essay on the History of Civil Society, adding that man ‘is in some measure the artificer of his own frame, as well as his fortune . . . destined, from the first age of his being, to invent and contrive. . . . We may desire to direct his love of improvement to its proper object, we may wish for stability of conduct; but we mistake human nature, if we wish for a termination of labour, or a scene of repose’ (Ferguson 1995b, pp. 12–13). To overcome the breach between man’s ‘natural state’ and the ‘state of society’, which Rousseau had attempted to bridge only by invoking our species’ miraculous faculty of ‘perfectibility’, Herder turned to this definition of man as ‘artificer of his own frame’ which in Ferguson’s formulation embraced a reference to Pico della Mirandola’s celebrated treatise on human dignity (De dignitate hominis, 1485–6). But, unlike Ferguson, in assembling 243

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The new light of reason his own philosophy of history Herder laid special emphasis upon mankind’s physiological constitution. Already, in his Treatise on the Origin of Language (1770), he had stressed the importance of understanding man’s place in nature and the affinity of our species with others in the animal world. It is man’s freedom from the constraints of animal instincts, he had argued in the Treatise, that makes possible our acquisition of speech and reason as manifested through our use of arbitrary signs in language and writing; in the Ideas he added that this transforms man into the ‘first freeborn of creation’ (Ideas, bk iv, iv: HW, iii/1, p. 135). Herder’s reflections on our species’ superiority over the apes by virtue of our upright posture should be read within the context of European debates from the 1760s to the 1780s about the physical characteristics alleged to set man apart from all other creatures. This debate, enhanced by the discovery of the function of the occipital hole by Buffon’s collaborator Daubenton (1764), Camper’s studies on the anatomy of apes, and Goethe’s discovery of the intermaxillary bone (1784), entailed for Herder the corollary of regarding man, physically, as an integrated part of the animal kingdom, albeit in the most complex form evolved by the general type of life whose existence Buffon had assumed. It is precisely the singularity of the upright posture of our species among the quadrupeds that frees man’s hands and his mind from earthbound instincts. Human speech and what is commonly termed ‘reason’ are therefore nothing but substitutes for instincts that mankind lacks, even if they separate him henceforth from his ‘elder brothers’, the animals with which he shares the earth. The arbitrariness of human behaviour in the absence of compelling instincts facilitated for Herder man’s adaptation to different environments, by forcing him to invent the means peculiar to his species – language, social codes, religions, and traditions – that enabled him to survive. As distinct from Rousseau and from – the otherwise greatly admired – Lord Monboddo (Of the Origin and Progress of Language, 1773–92), and in vehement opposition to Moscati and Kant, Herder sought to establish the case for mankind’s uniqueness as a species on naturalistic and physiological grounds alone, with reference to the structure and organisation of the human body. And as distinct from Henry Home’s (Lord Kames’s) polygenist account of the multiple races of man (Sketches of the History of Man, 1774), Herder put forward a monogenetic theory of humanity’s origins, in the light of which the emergence of varieties within our species could be explained with reference to migrations and the accumulated effects of adjustments to diverse terrains, climates, and diets. Because he supposed that the rudiments of social life and institutions had been established to enable our forebears 244

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Naturalism, anthropology, and culture to achieve their aim of collective self-preservation, he thought there was a difference only of degree and not of kind between so-called ‘enlightened’ or ‘civilised’ nations, on the one hand, and ‘primitive’ nations, on the other. Montesquieu, in his Spirit of the Laws, had drawn a distinction between the peoples of the south, so bountifully supplied by nature that they felt no need to free themselves from its grip, as against those of the north, who, by dint of their industry in an inclement world, created cultures of emancipation from nature’s control; his theory of the connections between commerce and republican government was, at bottom, climatological. Voltaire, in his Essai sur les moeurs of 1756, distinguished cultures in much the same manner as Montesquieu, except that he aligned the east with the south and the north with the west, along geographical axes that were also temporal, in so far, as he put it, that ‘the fertile countries were the first to be peopled and civilized. The whole of the east, from Greece to the extremities of our hemisphere, was already famous, before we knew enough of this in order to recognize that we were barbarians’ (Voltaire 1963a, i, p. 197). In adopting these dichotomies between cultures in terms of climate and geography Herder placed particular emphasis upon their third dimension, time, describing the history of civilisation as comprised essentially of two stages, first, ancient history, tracing the growth and decay of empires from China, India, and Mesopotamia, to Egypt, Greece, and Rome; and, second, modern history, in effect, the emergence and development of European culture, with all its technical and institutional variations. Conceived in this fashion, perhaps the most crucial distinction that set modernity apart from both antiquity and the late middle ages in the wake of the Reformation turned on the notion of culture itself, in so far as the ancient world was mainly populated by nations whose peoples shared a collective identity with either civic or communal gods, whereas the modern world, from its beginning with the decline of the Roman Empire and the rise of Christianity, was threatened by the tendency towards absolute power of papal and feudal government. The systematic rule of the pope over each person’s body and soul and the establishment of feudalism in Charlemagne’s vast empire entailed the loss of the religious as well as intellectual freedom and patriotic devotion of their subjects. It was only in the aftermath of the Crusades that, with the collapse of the monolithic structures of church and feudal state, liberty and enterprise returned, in the communities of Italy, on the Rhine, or in the merchant-cities of the Hanse, only in order to give way, after a brief respite, once more to the complicated machinery of power of the contemporary absolutist state. Like Rousseau, but fundamentally at 245

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The new light of reason odds with most progressive thinkers of the age of Enlightenment, Herder espoused political ideals that were at once communitarian and republican; the state, therefore, held for him no value in itself. And, as passionately as Rousseau, Ferguson or, before them, Spinoza, Herder believed that ‘the purpose of the state is, to maintain the liberty of its citizens’ (Spinoza 1972, i, p. 604; HW, iii/2, pp. 542–3). However much attached in his ethics to the liberating principle of autonomy, Kant, in his politics, seemed to Herder to subscribe to the venerable tradition of absolutist natural law, according to which, as his former teacher had put it in his Universal History from a Cosmopolitan Perspective (1784), ‘man is an animal that needs a master’ (‘ein Tier, das einen Herrn n¨otig hat’). Herder, by contrast, believed that in this respect above all Kant had got his principles back to front, since it would have been much truer to say that ‘a man who needs a master is an animal’ (Ideas, bk ix, iv: ‘der Mensch, der einen Herren n¨otig hat, ist ein Tier’: HW, iii/1, p. 337). When the French Revolution in 1789 swept away the ancien r´egime, an occasion seemed to present itself for Herder’s notion of liberty to be put into practice by political advocates. But Germany was not France, and Herder had not written a Contrat social. The enlightened absolutism of Frederick II of Prussia and of Emperor Joseph II had been ailing in the 1780s, and both monarchs died in quick succession, Frederick in 1786, Joseph in 1790, after having been forced to abandon or revise their reforms. Their successors were ready to turn the clocks back within their own countries and tried to stem the tide of their times in Europe: when Frederick William II of Prussia and Emperor Leopold II met in Pillnitz in 1791, by agreeing to restore the throne to Louis XVI they produced the revolutionary wars that were to be continued by Napoleon and were to wipe out the old Holy Roman Empire. Under such auspices, Herder’s communitarian notions could not find much favour with political theoreticians, and the emerging German historical school of law, advocating the ‘Volksgeist’ as the basis of positive law, definitely took more from Justus M¨oser than from Herder, notwithstanding many appealing formulations in his writings. Such was the case, for instance, with regard to Friedrich Carl von Savigny in his On the Vocation of our Time for Legislation and Jurisprudence (Vom Beruf unserer Zeit f¨ur Gesetzgebung und Rechtswissenschaft, 1814). Barnard’s opinion that political romanticism reversed Herder’s political concepts should be considered in the light of Otto Dann’s sobering diagnosis that ‘as for the question of nationalism one might speak of a forgetfulness (or suppression?) of Herder’ in the relevant political and juridical literature of the nineteenth century (Barnard 1964, 246

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Naturalism, anthropology, and culture p. 187; Dann 1993, p. 309). German conservatism after the Congress of Vienna of 1815 is much more imbued with the ideology of obedience to the state, according to Kant’s and Fichte’s interpretation of the political meaning of liberty, embracing the sacrifice of their freedom by the members of a community in favour of a corporate state, ordained by God, according to the image drawn by Novalis in his Christianity or Europe (Die Christenheit oder Europa, 1799).

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III Natural jurisprudence and the science of legislation

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9 German natural law k nud ha akon s se n

1

The reception of modern natural law

In order to appreciate the role of natural law in the eighteenth century, it is important to note that most Protestant Europeans saw it as a modern phenomenon. Seventeenth- and eighteenth-century thinkers were well aware that natural law was prominent in both ancient and medieval thought, but in their eyes it acquired a new role with the division of Christianity and the emergence of modern statehood. The concern of modern natural law was to find a basis for moral life that, without conflicting with the tenets of Christianity, was neutral with respect to confessional religion. Natural law was thus central to one of the defining debates of the Enlightenment, namely whether and to what extent the cognitive, including moral, powers of humanity were adequate to the conduct of life in this world. While all the sciences were invoked to this purpose, in discussions of the foundation, nature, and extent of natural law, that central issue was particularly explicit. The debate ran deep in every Protestant community – Reformed, Lutheran, and episcopalian – for at issue was the basis for the social world. Natural law’s replacement of revealed religion with natural religion led to a highly ambivalent view of morality and its institutional forms, ranging from the family and the economy to the state, as either the creation or the expression of natural man. Not least, the idea of religion as both a common bond and a shield between ruler and ruled was called into question, as was the status of the church. The debate had to a large extent been provoked by Hobbes and Pufendorf, according to whom God had deposited humanity within a world in which moral characteristics were only instituted by the exertion of man’s will.1 The key question for such voluntarists was what guidance has humanity in this 1 For general surveys of early modern natural law see Gierke 1934; Haakonssen 1996a, ch. 1; Haakonssen 2004; Hartung 1998, pt 1; Hinrichs 1848–52; Hunter and Saunders 2002; Ilting 1983; Schneewind 1998, pt 1; Stolleis 1988, ch. 6; Tarello 1976; Thieme 1954; Tuck 1999, chs. 1–5; Wolf 1963.

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Natural jurisprudence and the science of legislation effort? According to Hobbes, it had a minimal natural law stating the rational precepts of self-interest, to which Pufendorf added humanity’s natural sociability, though whether the latter was the expression of a moral faculty or an implication of self-interest is disputed (Palladini 1990). In the ensuing debate, which was significantly influenced by Richard Cumberland, attacks on the new natural law were generally to the effect that its voluntarism was tied to egoism (Cumberland 2005; Haakonssen 2000; Parkin 1999; Schneewind 1995). We find this, at the theological level, in both Anglican and Lutheran reactions and, at the philosophical level, in ‘rationalistic’ thinkers, such as Samuel Clarke and Leibniz, the latter of whom formulated a neo-scholastic theory of natural law (Beiser 1996, ch. 7; Riley 1996; Schneider 1967; S`eve 1989). Equally universally, voluntarist natural law was defended through attempts to show that the exercise of will that is naturally enjoined on man encompasses the happiness of all humanity. The major defendant in this vein was Christian Thomasius, who formulated a theory of natural law as the specification and rule of the passions that make social life possible. At the turn of the eighteenth century we find, then, a major European discussion forming a three-cornered contest between, first, a variety of traditional confessional standpoints according to which morality has its basis in revelation; secondly, the new, provocative voluntarism started by Hobbes and Pufendorf and continued by Thomasius; and, thirdly, a rationalist and realist view of natural law that owed significant debts to scholastic, especially Thomist, theory and typified by Clarke, Leibniz, and Christian Wolff. The interaction between these intellectual currents was, however, exceedingly complex, being often overdetermined by particular cultural and political circumstances. Hobbes’s voluntarism was premised on a view of the divinity as so inscrutable that the sovereign could legislate for both religious and civil life. In the case of Pufendorf and Thomasius, voluntarism was accompanied by fideism, so that man was allowed access to the divine will in religious matters, while denied it in civil life, where convention and sovereign rule held sway. For their part, the rationalists could insist that natural reason was indeed capable of knowing the transcendent concepts and moral laws that issued from the divine mind, even if they thus imbued human reason with some of the key features of divine understanding. These fluid intellectual lines must be understood in their interaction with the religious and political circumstances in which they unfolded, as can be seen from the British and German instances (cf. Saunders and Hunter 2003). Perhaps the most important contrast between Germany and Britain is that voluntarism of the Pufendorfian variety never became a dominant force in 252

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German natural law the latter. In fact, the line of thought represented by Pufendorf and Hobbes was diffused during the subsequent century. The idea of moral and political institutions as purely conventional was developed in an original manner by David Hume and Adam Smith, who made the conventions a matter of historical development. Mostly, however, English and Scottish thinkers were concerned to transform and undermine the voluntarist basis for Pufendorf’s natural law system (Haakonssen 1996a, pp. 43–4n). England possessed within the Anglican Church an unbroken realist tradition in moral thought that variously sought inspiration from Thomist Aristotelianism, as with Richard Hooker and Nathaniel Culverwell, and from neo-Platonism, as with the Cambridge Platonists and the third earl of Shaftesbury (Beiser 1996; Greene and MacCallum 1971; Munz 1952; Passmore 1951; Rivers 1991–2000, ii). To these lines of thought was added a strong revival of Stoicism (Oestreich 1982; Stewart 1991). When this tradition was challenged by Hobbesian and Pufendorfian voluntarism, a set of eclectic compromises was struck, beginning with the Cambridge Platonists but developed mainly by Scottish thinkers, most notably Francis Hutcheson (Haakonssen 1996a, chs. 2, 6–8). A line of argument was pursued that conceded to Platonism the idea of an inherently benevolent power in human nature, whilst at the same time accepting the voluntarist emphasis on the imposition of duties through the prescription of moral ends. The balancing of these two notions came to be conceived of as amenable to an empirical science of morality. It is possible to link these intellectual compromises to the broader movements to accommodate the Anglican Church in England to dissenting tendencies and to modernise the Presbyterian Kirk in Scotland, not least through new university curricula. In Germany, by contrast, the absence of a single politicoreligious settlement, compounded by the multiplicity of polities, gave rise to a more fractured state of affairs. In Brandenburg-Prussia, for example, where there was no established church and the Calvinist dynasty had to rule over a powerful Lutheran church and estates, Pufendorf’s and Thomasius’s radically anti-metaphysical voluntarism was well entrenched in the law faculties, where it promised to deliver de-confessionalised officials to the state. Yet, in many philosophy and theology faculties, the metaphysical approach to ethics and law remained deeply entrenched, as we can see in the line that ran from Leibniz and the seventeenth-century Protestant scholastics through Wolff to Kant. The Anglo-Scottish transformation of Pufendorf was due not only to the indigenous tradition but also to the way in which he was received in Britain via a ‘Dutch–Swiss’ filter. The Lutheran philosopher’s work had been 253

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Natural jurisprudence and the science of legislation adopted as an ally by leading Huguenots in the debates about their perilous situation after the Revocation of the Edict of Nantes in 1685, as is apparent in Gershom Carmichael’s Glasgow lectures of the 1690s and in his edition of Pufendorf’s De officio hominis et civis (On the Duties of Man and Citizen). The crucial link was Jean Barbeyrac, whose French translations, with extensive introductions and annotations, of Pufendorf’s De jure naturae et gentium (Le droit de la nature et des gens – The Law of Nature and Nations, 1706) and De officio (Les Devoirs de l’homme et de citoyen, 1707) were widely circulated and translated into several other languages. Both in Switzerland and Holland, Barbeyrac inspired a number of Reformed natural law thinkers, of whom one of lasting importance was Jean Jacques Burlamaqui.2 One cannot speak of a Barbeyrac school, but his voluntarist natural law, while underdeveloped, was marked by a distinctive core of historical and theoretical importance. In attempting to meet the challenge of the French king’s assertion of a right to sovereignty over his subjects’ religious beliefs, Huguenot opinion had polarised. On the one hand, Pierre Jurieu turned away from a traditional divine right theory of sovereignty and adopted a contractarian theory of monarchomach origin, combining an idea of resistance with faith in providential intervention of the kind that had apparently occurred in England in 1688. On the other hand, like Pufendorf’s and Thomasius’s, Pierre Bayle’s scepticism about the possibility of moral and political knowledge led him to argue that religious toleration was a sovereign gift which, despite temporary setbacks, was most likely to be granted by governments that were the least influenced by changing opinion, namely absolute monarchies (Dreitzel 1997; Laursen 1989). The focus of these debates was conscience. Barbeyrac’s importance lay in analysing this concept in order to rebut Bayle’s scepticism and reach a more prudent political standpoint than Jurieu’s.3 Conscience was the moral power that enabled people to live socially. It was the basis for political society and its institutions. Toleration of the free use of conscience was, therefore, essential; it had to be treated as a right; 2 For Carmichael see Carmichael 1724, 2002; Mautner 1996; Moore and Silverthorne 1983, 1984; and ch. 10 in the present volume Moore. For Barbeyrac see Barbeyrac 1709, 1728, 1996, 2003; Dufour 1976; Goyard-Fabre 1996a, pp. 11–74; Hochstrasser 1993, 1995. Cf. Br¨uhlmeier 1995; Dufour 1976, ch. 2; Gagnebin 1944; Harvey 1937; Holzhey and Zurbuchen 1993; Korkman 2001; Larr`ere 1992, ch. 1; Luig 1972; Meylan 1937; Moore 1988; Othmer 1970; Rosenblatt 1997, pp. 93–101; Zurbuchen 1991, chs. 5–6. For Burlamaqui see Burlamaqui 1747, 1751, 1766–8, 1775, 2006; Br¨uhlmeier 1995; Dufour 1976, ch. 2; Gagnebin 1944; Harvey 1937; Holzhey and Zurbuchen 1993; Larr`ere 1992, ch. 1; Rosenblatt 1997, pp. 93–101; Zurbuchen 1991, ch. 5. 3 Barbeyrac’s arguments are spread throughout the annotations to his major editions, but he gives a concentrated brief exposition in 1749, pp. 1–14 and 71–5.

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German natural law a right by which sovereignty was, consequently, limited. This meant that sovereign government was best understood as a conventional – contractual – device for protection, as opposed to a divine right. Further, unlike that of Hobbes and Pufendorf, Barbeyrac’s political contract supported a residual right of resistance in the people, even if ‘the people’ had to be understood as the morally qualified, educated, upper magistracy and clergy. In short, Barbeyrac invoked both Lockean and traditional Calvinist resistance theory. While an unconstrained conscience was a right, according to Barbeyrac, it was, so to speak, an inescapable right which might as well be described as a duty: each person had to judge personally in moral and religious matters. Another construal was to call this right inalienable: it could be neither rightly removed nor renounced. This notion of an inalienable right was very clearly expounded by Burlamaqui, and it is likely that he had some influence on the development of the idea of rights in America (Haakonssen 1996a, pp. 322– 41, 2002; McConnell 1996; White 1978). Under reference to Locke, Barbeyrac gave an account of the power of moral judgement as in principle veridical, that is, a power by which people were able to tell what is right and wrong. If so, why do we need natural law, considered as the law of God, to guide us? Because without divine decree, we would have no obligation to do right and avoid wrong: ‘you will have only . . . a speculative morality, and you build upon the sand’ (Barbeyrac 1749, p. 13). Without God’s presence, our moral judgement would not constitute conscience. So, while Barbeyrac at one level presented a theory based upon natural right, the right to free conscience, at another level he offered a theory of a moral power that has a right use, namely that intended by God. This ambiguity of ‘right’ as freedom and as rightfulness became characteristic of most Scottish natural jurisprudence, and it persisted in the writers of the French Enlightenment, including Rousseau, notably in his discussion of the right to liberty.4 2

The political context of German natural law

For much of the eighteenth century, such ambiguity played little role in Germany, essentially because there moral realism was predominantly Aristotelian rather than Platonist in inspiration and, until the 1770s, generally lacked the British concern with moral agency. While Leibniz was influenced 4 Rousseau 1984, pp. 183–4; SC, i.4, p. 188. Cf. Derath´e 1950; Dufour 1976; Gordon 1994, pp. 54–73; Larr`ere 1992; Rosenblatt 1997; Wokler 1988a, 1994a; Zurbuchen 1991, chs. 4–6. For the Netherlands see Janssen 1987.

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Natural jurisprudence and the science of legislation by Platonism, he did not set in train any equivalent to British speculations on Henry More’s ‘boniform power’ and Hutcheson’s moral sense. There was no comparable German attempt, until much later, to subvert the voluntarist idea of ‘naked’ acts of will as the foundation of morals. Instead Germany was dominated by confrontations with the new voluntarism, at first from orthodox Lutheran thinkers, and later from Leibniz and Wolff. The context for these debates is complex but vital, and may be sketched as follows. At a political and juridical level, natural law was an important instrument in the transformation of German politics after the Peace of Westphalia which ended the catastrophic Thirty Years War in 1648, a war fought mainly along religious fronts and which was both civil and international. The peace treaty accelerated the formation of modern sovereignty in the form of centralised, mainly princely, rule in the territorial states into which Germany was divided. This required that the princes overcome the intricate corporatist as well as provincial diffusion of social, juridical, and political power that was part of the immediate post-Reformation settlement, often as remnants of late medieval arrangements. At the same time, the new system of sovereignty had to contend with the fact that it was being formed within the confederal constitutional framework of the Holy Roman Empire which encompassed Germany, Austria, and Bohemia. This was seen as the true heir to the Roman Empire through its adoption of Roman law, for a long time explained by the legislator-myth that Emperor Lothar III early in the twelfth century promulgated the law of Rome for Germany. This tale was discredited by Hermann Conring in 1643 (Stolleis 1983), and it was in any case more the medieval Italian glossators’ version of Roman law that over the centuries penetrated into German law, but this did not make it a less potent weapon in the hands of Romanist lawyers and imperial officers; only slowly did it weaken (Stolleis 1988; Whitman 1990; Wieacker 1952). Faced with a long-standing internal devolution of power as well as an external diffusion of sovereignty in the name of a still evocative ancient constitution, the territorial princes welcomed natural law, seen as a theory of absolute sovereignty based on universal – ‘natural’ – values, without any need to invoke history, tradition, or confessional religion. In these endeavours the princes received some assistance from another dimension of Imperial law, namely, Imperial public law or Staatsrecht. Evolving through a series of Imperial statutes and international treaties – the most famous being the Treaty of Augsburg in 1555 and the Treaty of Westphalia in 1648 – Imperial public law helped to provide the framework of confessional co-existence within which princely territorial states could develop (Heckel 1992). 256

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German natural law Appealing to the princes’ rights to territorial governance which had, in fact, originally been framed by Imperial public law, natural law served as a means of disputing the Roman lawyers’ claims for the institutions of the Empire and, during the eighteenth century, one state after another sought exemption from the right of appeal to the central Imperial court. However, while the Empire undoubtedly was weak in many respects in the Enlightenment, it remained a factor of some importance until its final demise in 1806 as a casualty of the Napoleonic wars; and the ideology of the ancient Roman constitution was revived as an integral part of the Romantic movement from the 1780s onwards. Since natural law, too, remained alive much longer than has often been thought (Dann and Klippel 1995), the intricate relationship between the two systems or approaches to law continued to be of importance well into the nineteenth century. Internally in the states, natural law served as the underlying ideology in the many attempts to ‘rationalise’ and codify the legal systems through centralisation, in the drafting of constitutions, and in the education of princes and governing elites.5 The eighteenth century’s classic case of absolutism, France apart, was Denmark, whose Lex regia (1665) was deeply influenced by Hugo Grotius. The significant Swedish codification, the Sveriges Rikes Lag of 1734, was influenced by Pufendorfian natural law; and Pufendorf still played a role in the future Emperor Joseph II’s education in politics and law twenty years later; Josephine law reforms were heavily indebted to natural law. Joseph’s younger brother, Leopold II, was exposed to the ideas of Wolff, in the ‘Catholicised’ tenor given these ideas by Karl Anton von Martini; and it was the latter’s student, Franz von Zeiller, who, inspired by Kant, drafted the code for all German parts of the Habsburg realm. The future Frederick the Great was steeped in Wolff’s philosophy and he retained a basically Wolffian pattern of thought in his political ideas. The notable natural lawyer, Samuel von Cocceji, had already been involved in law reform in Prussia in the 1710s and 1720s, and he was the architect of Frederick’s grand, if largely abortive, attempt to codify the Prussian legal system in the 1750s and 1760s. The great Prussian Allgemeines Landrecht of 1794 was significantly influenced by the systematics of natural law, which its main author, Carl Gottlieb Svarez, impressed upon the Prussian crown 5 Klippel 1987; for Denmark see Fabricius 1920; Jørgensen 1886. For Sweden: Peterson 1988; Picardi and Giuliani 1996; Skuncke 1992, pp. 127, 150–1; Wagner 1986a, 1986b. For the Habsburgs: Conrad 1961, 1964; Szabo 1994. For Prussia: Haakonssen 1996a, pp. 135–45; Johnson 1975, pp. 106–33; Klein 1977; Kleinheyer 1959; Reibstein 1962; Svarez 1960, pp. 3–624; Weill 1961; Wieacker 1952, pp. 322– 47; cf. Gagn´er 1960, ch. 1. For Hesse-Cassel: Ingrao 1987, pp. 13–16. For Geneva: Rosenblatt 1997, ch. 3.

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Natural jurisprudence and the science of legislation prince in his private lectures in 1791–2, Vortr¨age u¨ ber Recht und Staat (Lectures on Law and the State), while his co-author, Ernst Ferdinand Klein, debated the issues at length as a prominent member of the Berlin Enlightenment. Burlamaqui was tutor to the landgrave of Hesse-Cassel, Frederick II, and Gustav III of Sweden was fond of Burlamaqui’s work. At the same time, in Geneva, Barbeyrac and Burlamaqui were invoked by the ruling patriciate in its struggle with the bourgeoisie about the true nature of the city’s republican constitution. Reflecting its growing political and legal importance, natural law became institutionalised. It became a major field of study. After the first university position to claim natural law as its domain, namely that held by Samuel Pufendorf in Heidelberg in the 1660s, the subject was introduced at nearly all the universities and other educational institutions of the German-speaking world as well as in many other parts of Europe. Along with professorial positions went the production of textbooks, often based on lectures, compendia, and commentaries on and translations of the major works (especially those of Grotius and Pufendorf), bibliographies, dissertations, etc. As is common when an area of study acquires ‘disciplinary’ status, natural law received its own historiography, which was commonly used as an introduction to the topic (Hochstrasser 2000). This literature was extensive and may be said to be the dominant form of moral and political thought in the Enlightenment in general, particularly so in Germany, aided by the fact that natural law was a loosely structured genre rather than a narrowly defined doctrine. It could be adapted to a wide variety of circumstances and purposes used across confessional and ideological divides, often as a tool for systematic organisation of material and as a vehicle for social knowledge which was in the process of dividing into separate academic disciplines, such as economics and demography (Br¨uckner 1977; Klippel 1994; Larr`ere 1992; Tribe 1988). It was, above all, its usefulness to the state governments that made natural law so prominent in German universities. This enabled natural lawyers to marginalise their Roman law colleagues in many places. Not least due to its non-confessional character, natural law could compete with theology for public prominence in the multiconfessional states of Germany. The Holy Roman Empire encompassed states that were Lutheran, Reformed, and Catholic. In some German states the ruling princes were of a different confession from that of their subjects; for example, Lutheran Brandenburg-Prussia was ruled by a Reformed (Calvinist) dynasty. There 258

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German natural law was, therefore, a strong interest in a supra-confessional natural law as a basis for social morality and positive law, and the princes tried to maintain a close alliance with, and control over, university faculties as the seedbeds for such ideas. This portrait of secular, ‘rational’ natural law in the service of sovereign states, with a programme of bureaucratically organised modernisation of society, is commonly taken as an integral part of the Enlightenment in Germany. But tradition-based political and legal ideas and their decentralised institutional and individual proponents who were in conflict with the new natural law were not necessarily opposed to Enlightenment (Reill 1975). Provincial lawyers had their own ideas of enlightened reform in their local contexts and developed law and local governance by teaching, researching, and applying Roman law, Imperial law, state law, local common law, and natural law eclectically. The limited success of the grandiose codification projects by state governments may in part be explained by the circumstance that other reform movements were afoot (Lestition 1989). Another complication in the nexus between Enlightenment and natural law was the lack of unity in natural law. It is a useful simplification to say that natural law theory in Germany in the eighteenth century was divided into two broad streams, one that developed the legacy of Pufendorf and one that emerged from Leibniz, while the rights theory that formed a third strand in European natural jurisprudence at the turn of the eighteenth century had little impact in the German-speaking world until late in the Enlightenment. The doctrinal differences of the two German traditions in the eighteenth century, represented by Thomasius and Wolff, will be discussed below, but their socio-political function will provide an introduction to those theoretical issues. The two types of natural law possessed a number of common features. For example, they shared the same elaborate systematics and the same legal and political subject matters, and they derived these from the same sources, the Roman law tradition, the Spanish neo-scholastic natural law, and the major natural lawyers of the seventeenth century mentioned above. Similarly, both Thomasius’s and Wolff’s natural law were universalist and ‘rational’ in the sense of non-confessional. They were not primarily concerned with rights; rather, they were centred on the idea of law that imposes duties. They were also, in the common view, both theories of absolute sovereignty. For all these reasons, either form of natural law could fulfil several of the practical functions we have mentioned, and this has led to a long tradition of overlooking 259

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Natural jurisprudence and the science of legislation or down-playing their differences. However, there was a philosophical gulf between them which had important practical implications. The core of the matter is that for thinkers in the Leibnizian tradition and especially for Wolff, law and politics were essentially concerned with the perfectibility of human nature as part of the general system of the world. In contrast, for those in the Pufendorfian line, and Thomasius in particular, law and politics were concerned with restraining and pacifying a human nature that was inherently passionate and tended to be ungovernable. According to the former view, the conventional political aim, salus populi, the people’s welfare, meant the maximisation of happiness; in the latter, it meant the maintenance of peace and order. The former entailed that politics was all but limitless, and that sovereignty was in that sense justified in being absolute; the latter meant that politics was defined by its limited agenda and that sovereignty was absolute only within this sphere, since there was no safe common ground on which a limiting power could be justified. Against this background we can see that in the Leibnizian legacy it was philosophical insight into man’s place in the world that qualified one for political rule. By contrast, the tendency in the Pufendorfian tradition was to exclude or limit the political invocation of ultimate things, whether religious or philosophical. This contrast is reflected in the way in which the two lines of thought functioned socially and politically. Wolffian philosophy aspired to, and in considerable measure achieved, the status of a civic religion for the governing classes, especially in Prussia, where Wolff’s natural law theory provided what has been analysed as the ruling bureaucracy’s value scheme (Hellmuth 1985). Thomasius’s philosophy never in this way aimed at being a politically entrenched Weltanschauung, but was much more concerned with a public ethos of delimiting religion, morals, law, and politics, and with the professional training of lawyers and administrators as the guardians of these boundaries. Accordingly, Wolffianism required that the universities’ philosophical faculties become competitive with the traditionally ‘higher’ faculties of law and theology as seminaries for the new elite of bureaucrats, or that Wolffian philosophy was integrated into at least the legal training. In this, Wolff and his followers were remarkably successful. In contrast, the Thomasians tended to be most effective in the major new schools of law in Halle and G¨ottingen. Furthermore, for reasons that will become clear, Thomasius’s ideas opened up historical and empirical studies of the law and thereby spread their influence widely but also much less perceptibly. 260

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German natural law 3

Christian Thomasius6

Thomasius’s starting point was Pufendorf, with whom he was in close contact during the older man’s last years. Thomasius’s first major work, the Institutions of Divine Jurisprudence (1709 [1688a]; trans. forthcoming), was designed, as the title page proclaims, to prove and elaborate the principles of Pufendorf’s natural law and to defend them against criticism. When he published his second attempt at a system of natural law seventeen years later, the Foundations of the Law of Nature and Nations, Deduced from Common Sense (1709 [1705a]; trans. forthcoming), Thomasius’s ideas had undergone a dramatic change, although it might yet be possible to see the Foundations still building on Pufendorf. The critics against whom Thomasius was offering Pufendorf a helping hand were the orthodox Lutherans, especially Valentin Alberti who was an influential professor of theology at Leipzig (Osterhorn 1962). In his Compendium to Natural Law according to Orthodox Theology (1678) and other writings, Alberti stated the orthodox case, that religious faith was doctrinal in character, i.e., that it was a matter of ideas about God’s nature. These ideas were innate to the human mind, but they had been much obscured through original sin so that the clergy had the special role of ‘declaring’ – as opposed to interpreting – what was in a sense self-evident in scripture. The basis for morality, i.e. the law of nature, was thus to be extracted from the original human condition before the Fall when man could understand the divine prescriptions that derived from God’s essence which, with reference to Thomas Aquinas, were called the eternal law. Pufendorf’s core objection to this argument was that it mixed up two entirely different aspects of human life and that this mixture was immensely dangerous (Pufendorf 2002b, 2003, preface; Hunter 2001, ch. 4). Religion, or humanity’s quest for living with God was one thing; morals and politics, people’s striving to live with themselves and with each other in this world, quite another. What the orthodox were trying to do, in Pufendorf’s eyes, was to lay claim to a special vantage point outside of all human morality and society from which they could judge the latter. This, however, was inconsistent with the simple fact that people are always and inevitably, given human nature and its condition, living in some sort of moral and social condition, though they do so with varying practical success (for Pufendorf even the imagined solitary 6 Ahnert 1999; Barnard 1965b, 1971, 1988b; Bienert 1934; Bloch 1961; Fleischmann 1931; Grunert 2000, pp. 169–288; Hochstrasser 2000, ch. 4; Hunter 2001, ch. 5; K¨uhnel 2001; Lieberwirth 1955; Lutterbeck 2002; R¨uping 1968; Schneewind 1998, pp. 159–66; Schneiders 1971, 1989; Schr¨oder 2001; Vollhardt 1997, 2001.

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Natural jurisprudence and the science of legislation life in a state of nature is a moral condition under natural law). While it may make sense to ask why one should live in this or that particular moral or social arrangement, to claim a transcendent standpoint in relation to historical morality and society is nonsense, politically speaking, and very often dangerous nonsense, since by definition such a question sets itself above concern for the central point of moral and social living, namely peace. In Pufendorf’s view, the relationship is of course symmetrical: just as salvational religion is irrelevant to the morality and politics of civil society, so the latter are, properly speaking, irrelevant to salvation. Thomasius adopts this idea that we, as public persons (in contrast to our private roles in family and church), always see the world from inside some particular moral and socio-political position. Yet in the early Institutions he undermines the mentioned symmetry between morals/politics and religion. It is true that he, like Pufendorf, maintains that the law of nature which is the basis for morality and society is an expression of God’s will, and that we know this law naturally through reasoning about ordinary human experience. However, by placing greater emphasis on human incapacity, he startlingly incorporates divine positive law – as found in scripture – into the discipline of jurisprudence, hence the title of the work. The difference between the two divine laws is the way in which we know of them: natural law through reason, God’s positive law through scripture; but both are acts of divine will. This move is commonly seen as half-hearted on the part of Thomasius; he appears to have wanted to accommodate both Pufendorfian natural law and more traditional Lutheran views of divine positive law. However, his point may be rather different and more daring. He treats the knowledge which scripture gives us of the pristine condition of humanity and its subsequent miseries as historical knowledge without any specially privileged status. Accordingly, it is subject to the standards of interpretation contained in natural law and may indeed be expounded by lay jurists. Such knowledge can only be formulated in human language which is directly bound up with mankind’s fulfilment of the most basic edict of natural law, namely to live sociably, as we shall see. Thomasius is, therefore, in effect making the point that of the two manifestations of God’s will – biblical law and natural law – the former is, for the purposes of social living, subject to the criteria of the latter; both laws are governed by the end of sociable living. The implication is, of course, that the claims of theologians to special insight into God’s positive law should have no hearing outside the church and the theology faculty. 262

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German natural law The Pufendorfian–Thomasian theory is profoundly voluntarist in the sense that it sees all moral values as directly or indirectly dependent on acts of will (Thomasius 1688a, i.ii.74ff). No thing, such as a creature, no state of affairs, such as a relationship between creatures, and no event, such as an act of one creature towards another, has any inherent value. Human acts of will are in themselves nothing but natural events. In fact, in his late work, Thomasius came to understand the will in a somewhat Hobbesian sense, as a link in causal sequences of affections. Human acts of will only assume a moral aspect through their relationship to the law of nature, and the law of nature is only a moral law because it is God’s will. Considerable intellectual energy was expended on the problem that this argument transforms the question of the foundation of morals into that of the goodness of God, and Thomasius’s early work is a contribution to this debate. Put in modern terms, the gist of his reply is that it makes no sense to seek the foundations of morality if the latter is considered as a means of living with others qua human beings, as distinct from qua special relations in family, society, or religious faith. The reason is the ‘internalist’ point outlined above, namely that as persons of will and passion we are always inside a moral standpoint. Thomasius therefore denies that we can use our ideas of God to ‘found’ morality in general, and he underlines this by maintaining that, after the Fall, we really cannot have any reliable notions of God’s nature or goodness that can direct our common behaviour. Our rational ideas of God are partly historical from scripture, partly analogical from human agency, and partly inferential from our experience of life in the world. Despite this lack of transcendent normative foundations, morality is a fact about our condition in the world that originates in a divine will we cannot scrutinise because we have no standpoint free of its effect – natural law – from which to make such judgement. This argument is underlined by the lapidary way in which Thomasius deals with the question of obligation to natural law. All law, including natural law, rests upon a ‘first practical principle’, namely, ‘Obey the person who commands.’ A commander is a person with power to oblige others; otherwise he would be no commander. A law is a commander’s command that obliges others; if it did not, it would be no law. An obligation exists only because subjects have to obey a commander (1709 [1688a], i.iii.34–7). In other words, law and obligation are facts about the human world which are subject to definition but, by implication, not subject to justification from within that world. Thomasius therefore sees no reason why he should take seriously the traditional ‘Euthyphro’ dilemma about the moral status of the natural law, a problem which Leibniz later 263

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Natural jurisprudence and the science of legislation tried to press on the Pufendorfians in an epistolary essay of 1706 (Leibniz 1988, pp. 45–64; cf. Barbeyrac 1718). Since the content of natural law could be derived neither from God’s nature, nor from his eternal law as the orthodox would have it, humanity had to rely on its own rationality and reflection on its experience of the world. The inevitable result of this reflection was our utter dependence upon others, both for physical survival and for mental development as persons. This is the core of Thomasius’s argument and is a development of a similar point in Pufendorf that links rationality and sociability. The concept of reason upon which Thomasius relies is that of a dialogue or conversation. Reasoning consists of the manipulation of signs, and we only learn the use of signs in dealing with other people. So, without some minimum of social living, there could be no language and no ability to reason; these functions are interdependent. They are also unique to humanity, the means by which we alone can live under the guidance of natural law. It is through reason that we can reflect upon the fact that we would not have reason if we were not social, and that we could not be social if others were not reasoning likewise. Thomasius takes these undeniable facts as the best indication we have of God’s will, namely that we should always act so as to benefit the whole of humanity considered as rational and social. This ‘utilitas totius humani generis’ (‘benefit to the whole of the human race’) is again to be understood as ‘pax’ or ‘vita tranquilla’, peace or the quiet life with others, and it can be characterised as the essence of temporal happiness, ‘beatitudo’. This rational sociality (‘socialitas’ or ‘Geselligkeit’) is the basic natural law and thus the foundation for all society (‘societas’ or ‘Gesellschaft’). In developing his early theory of natural law, Thomasius adopted a view of human nature according to which humanity is strongly influenced by the passions, but has the free will to apply reason to restrain the passions. At the centre of this rational restraint are natural law and its various institutionalisations. But within a few years of publishing the Institutions of Divine Jurisprudence, he began to make a fundamental change in this anthropology (Ahnert 1999, chs. 3–8; Hunter 2001, pp. 209–34). Through a string of major and minor works which we cannot discuss here (1688b, 1691a, 1691b, 1692, 1696, 1699a, 1699b), he developed the idea that the passions totally determine man’s life and that there is no such thing as a free will to act upon rational understanding of experience. Restraint of the passions in the interest of social life would have to be sought in some way other than the kind of natural law originally put forward. 264

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German natural law At the same time, there were reasons internal to the theory of natural law for seeking a change of doctrine. As Thomasius stresses in the Foundations of the Law of Nature and Nations, Deduced from Common Sense, much of which takes the form of a critical commentary on his earlier work, his former Pufendorfian concept of natural law did not fulfil the criterion for being a law proper. This is particularly so since humankind never receives the law of nature as a command of God because God does not tie specific sanctions to the law in the manner of a legislator; rather, the connection between action and sanction is what Thomasius calls a ‘natural’ one (1709 [1705a], cap. prooem./vorrede §§ 8–10; cf. Ahnert 1999, pp. 91–5). The common argument that the reward and punishment for our moral performance would be meted out in an afterlife was not available to him, since he did not think that such a life was ascertainable by natural reasoning. Furthermore, Thomasius’s earlier, Pufendorfian understanding of natural law as a command with sanctions similar to positive law (divine and human) and only distinct from the latter in terms of the mode of understanding was, he now thought, the source of another serious mistake. By tying law to specifically imposed sanction, Thomasius had made all obligation external and ignored the internal ‘which, after all, is the finest form of obligation’ (§ 11). This, again, had prevented him, like everyone else, he thought, from distinguishing clearly between the various layers of morality which for him were three, namely what he called justum, decorum, and honestum, as we will see below. In fact, Pufendorf himself had thoroughly mixed up ethics and natural law (§ 12). Thomasius’s response to his extensive auto-critique in the Foundations included a significant change in legal theory. Natural law now lost its direct normative character and was only in an analogical sense law, not unlike Hobbes’s conception of the matter. In effect, natural law pointed out the connection between certain forms of behaviour, especially the establishment of institutions and the conduct of the passions. Thomasius furthermore reduced the ultimate divine sanctions to the causal sequences that make up man’s life on earth according to God’s general providence for the species. This leads us to investigate Thomasius’s distinction between external and internal obligation and between the three layers of morals. The former is a distinction between two kinds of sanction; external obligation arises when the behaviour in question is subject to sanctions in our external actions, internal obligation when sanctions are suited for our inner life. The premise 265

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Natural jurisprudence and the science of legislation here is that the good which we naturally strive after is peace or quietness of life that can be either internal – peace of mind – or external – security of action. Furthermore, external peace can either be a purely negative matter of being left in peace, or a matter of having one’s welfare actively secured or promoted. Actions that contribute to or are in accordance with the inner peace or balance of a person considered as a moral being make up honestum. This is the sphere of morality proper, for such actions are only obligatory internally, in conscience, and cannot be enforced; they are acts of love and would lose their specific moral character if enforced. Actions that simply avoid breaking the external peace comprise justum; they carry external obligation because they are enforceable and thus suitable objects of positive legislation. Actions that actively promote the external quiet of life, finally, form decorum. Although these actions relate to other people and in that sense are external, they only oblige internally and are not enforceable. They thus provide a middle way between honestum and justum, between morality and law; they have some similarities with those covered by Locke’s ‘law of opinion’, and they are characterised as matters of prudence, or politics. Thomasius’s notion of internal obligation has nothing whatever to do with Kantian self-legislation, nor is the distinction between external and internal obligation the harbinger for one between heteronomy and autonomy. Obligation simply means the connection between behaviour and sanction. Justum, decorum, and honestum provide a typology for the forms of behaviour and their matching sanctions, delineated in the social theories of jurisprudence, prudence, and ethics. While Thomasius in the Foundations was deeply critical of his earlier Pufendorfian theory, there is also significant continuity. It is the fundamental anti-metaphysical voluntarism that leads to the rejection of the ‘spiritual’ notion of a free will in favour of a supposedly empirical account of the passions. It is the same line of thought that takes away the idea that natural law is a command in the same sense as positive laws with an empirically ascertainable connection between legislative intent, action, and sanction. Thomasius accepts the consequences of the basic Pufendorfian idea that the law of nature is a fact about which it makes no sense to ask why we are obliged to it. Once that move is made, all specific content of the law of nature has to be derived from temporal sources, that is, from human acts of will that are guided by our limited understanding of our nature and place in the world. This procedure invites empirical methods, an invitation erratically accepted 266

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German natural law by Thomasius and yielding a combination of philosophical anthropology and moral, especially legal, history based upon his three spheres of honestum, justum, and decorum. Morals and law were thus seen as historical or cultural – ‘conventional’ – phenomena, and natural law lost its status as a metaphysically or religiously sanctified Grundnorm. In view of that development of his views, it is hardly surprising that Thomasius’s main influence, polemics apart, was in legal theory and its distinction from ethics and in legal history (Hochstrasser 2000, pp. 141–9; R¨uping 1968, 1979). This influence was channelled through the law and, in part, philosophy faculties at the two great Enlightenment universities of Halle and G¨ottingen (Hammerstein 1972, chs. 4, 5, 7). In the former institution, N. H. Gundling (1715, 1734), J. P. von Ludewig (1727), and, after some peregrination, J. G. Heineccius (1737, 1744, 1748) were of significance. The last was perhaps Thomasius’s most important follower who, on a similar philosophical basis, used natural law as a kind of systematic propædeutic to extensive studies of both Roman and German law (Heineccius 1741; Haakonssen 1996a, pp. 87–95). The founding father of G¨ottingen University in 1737, G. A. von M¨unchhausen, was a student of Gundling and the new faculty included several significant Thomasians, such as C. A. Heumann (1715–26), J. J. Schmauss (1748), and G. Achenwall (1750) who was also strongly influenced by Wolff. It was these historians of ethics and law who laid the foundations for the philosophical history that came to prominence in several academic disciplines in G¨ottingen, and was closely associated with similar British, especially Scottish, thought (Hochstrasser 2000, pp. 141–9; Oz-Salzberger 1995, ch. 10). These scholars also provided a link between Thomasian eclecticism and the cognate ‘Popularphilosophie’ of J. G. H. Feder, C. Meiners, and others in G¨ottingen (Bachmann-Medick 1989, ch. 1; van der Zande 1992, 1995). Outside Germany, Thomasius’s influence was limited, but he did have a notable impact on the Norwegian–Danish playwright, historian, essayist, moralist, and cultural icon Ludvig Holberg, who compiled a textbook, mainly from Pufendorf and Thomasius, which helped ensure that natural law became a lasting influence at the University of Copenhagen and as a practical legal instrument (Foss 1934; Holberg 1716; Tamm 1986). Holberg’s effort was followed by an anonymous translation of Barbeyrac’s edition of the shorter Pufendorf (1742). In Sweden, the royal historiographer, John Wilde, was a Thomasian who influenced the debate leading to the codification in 1734. However, rival philosophical ideas were soon invading Scandinavia from the south. 267

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Natural jurisprudence and the science of legislation 4

Christian Wolff7

When Christian Wolff appeared in Halle at the turn of the eighteenth century, his philosophy immediately became the exemplary metaphysical opposition to Thomasius’s eclectic and empirical programme. This opposition was to shape a great deal of German thought for more than half a century. The contest took place in a wider framework.8 Two other factors were of particular importance, namely orthodox Lutheranism and the Pietist rebellion against orthodoxy also centered in Halle. All four movements vied for political influence. Lutheran orthodoxy upheld a view of faith and hence of morals as doctrinal, and of doctrine as a matter of scripture as declared by the church. The implication was a political status for the clergy which always led to accusations of ‘Papalist’ ambitions. In protest against such views, Pietism demanded a return to Luther’s notion of every man as his own minister, which required that man’s wilfulness be broken so that he could experience God’s will directly. Such experience of conversion by the Almighty was the basis for all Christian living, but, in contrast to the theology of predestination, the individual could, according to Pietist Lutheranism, lose the effect of God’s communication. Every moment of life, therefore, had to be devoted to proving one’s worthiness of grace by showing its effectiveness in creating good in the world. As a consequence, the Pietists sought the princes’ help to convert society more or less into one large workhouse with an associated asceticism. While the Pietist emphasis on the will and passions as the dominant factor in human life was congenial to Thomasius and led to occasional alliances with their leaders, such as A. H. Francke, J. Lange, and J. F. Budde, especially in their fights with Wolff, there remained nevertheless a fundamental difference (Hunter 2001, pp. 270–1). For Thomasius, the Pietist focus on personal conversion was as much a claim to spiritual privilege as the claims put forward by orthodox theologians and metaphysicians; and, in the same way, it led to an effort to subsume politics under religion. Thomasius’s fundamental endeavour was to keep religion private and out of politics. In contrast, Wolffianism became similar to a civic religion with significant appeal to ruling princes, but it did so on a rational metaphysical basis, and thus independently of both scriptural faith and immediate divine 7 Bachmann 1977; Hochstrasser 2000, ch. 5; Hunter 2001, pp. 265–73; Lutterbeck 2002; Schneewind 1990, i, pp. 331–50; 1998, pp. 431–42; Schneiders 1983; Schr¨oer 1988; Schwaiger 1995; Stipperger 1984; Thomann 1977; Winiger 1992. 8 Bianco 1989; Erb 1983; Gawthrop 1993; Hinrichs 1971; Hinske 1989; Hope 1995, pt i; Kramer 1880–2; Ratschow 1964–71; Sparn 1976; Stoeffler 1973; Stroup 1984; Ward 1992.

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German natural law inspiration. In these battles, there were casualties on all sides, the most famous being Wolff’s dismissal from Halle and expatriation at the instigation of the Pietists in 1723 and his triumphant reinstatement in 1740 by Frederick the Great. Since his own lifetime, it has been common to consider Wolff’s philosophy as an extension and systematisation of that of Leibniz.9 Certainly Wolff was close to Leibniz in metaphysics and, not least, in his view of the public role of philosophy. Wolff also readily joined in the combat against voluntarist natural law and its implications. However, his source of inspiration was more the scholastic thinkers, especially Aquinas, than Leibniz. One reason for this was that Leibniz published little on these topics and certainly provided no systematic model for Wolff to follow in either ethics or politics, even though Wolff’s central notion of happiness (Gl¨uck) was much influenced by Leibniz (Schwaiger 1995, ch. 3). He was a relatively independent thinker in practical philosophy, the area in which he published most. Wolff was a prodigious and systematic writer who first worked out his philosophy in German and then rewrote the system in some thirty volumes in Latin. It is often assumed that the latter simply is an expression of German thoroughness, namely a rewriting for an international audience of the earlier German works, but that is a mistake (Stipperger 1984). Both the German and Latin series certainly move from a general theory of knowledge, through metaphysics to practical philosophy, but, in addition to significant rearrangements of the components of metaphysics (ontology, cosmology, empirical and rational psychology, and natural theology), there are important developments of practical philosophy in the Latin version that go to the heart of the political significance of Wolff’s thought. Put simply, while the German Ethics (Rational Thoughts on Human Actions, 1720) and the German Politics (Rational Thoughts on the Social Life of Man, 1721) contain a rather elementary and underdeveloped doctrine of natural law (Naturrecht), the Latin works elaborate natural jurisprudence (ius naturae), as a complete discipline. In making this change, Wolff worked out the relationship between the four central concepts of law (lex), obligation (obligatio), duty (officium), and right (ius). Behind the establishment of these relationships lay his speculations about innate rights (iura connata), especially the right to liberty, absent from the German work. The interpretation of these central features of Wolff’s moral and political thought has become the 9 For Leibniz and Wolff, see Corr 1975; Schwaiger 1995, ch. 3. For Wolff and scholasticism, see Bianco 1989; Casula 1979; Ruello 1963. A selection from Wolff’s moral thought is translated in Schneewind 1990, i, pp. 333–48.

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Natural jurisprudence and the science of legislation subject of fundamental disputes, as scholars have looked afresh at the Latin work. The central notion in Wolff’s practical philosophy is not sociability but the perfectibility of humanity and its condition. This is the summum bonum, and pursuit of it is, therefore, our ur-duty, the most basic command of the natural law. The notion of human perfectibility is complex and can only be understood through Wolff’s metaphysics, but three central characteristics indicate its nature. It is a gradual realisation of our natural abilities in such a way that they are in harmony with each other, both in ourselves and in others, which in turn is the same as our progress in happiness guided by the divine and transhuman ideal of perfect happiness, beatitude, and signalled to us through pleasure (Wolff 1733a, §§ 44, 49; Wolff 1738–9, I, §§ 374, 395). In order to have an obligation to natural law, people must have moral freedom, which consists in the realisation of one’s moral objective or potential. If not, they are unfree, due to ignorance, illogical thinking, the sway of passions, and the like. In other words, Wolff gives a purely intellectualist account of moral freedom as action determined by correct moral insight. This is important for an understanding of the contractarian aspect of his theory. With the natural law command to pursue perfection, or maximise happiness, we have an objective basis for morality entirely independent of God’s will. It is true that humanity is contingent, and hence there would be neither humanity nor any law for its nature without God’s voluntary act of creation. But the nexus between the nature of humanity and its moral law is purely conceptual and necessary, not something subject to any will, not even God’s. Given human nature as it is created, natural law is therefore immutable and even ‘God cannot prescribe for humans any law contrary to the natural’ (1738–9, i, § 282; cf. 1736, § 29). Wolff can therefore also be explicit and blunt in his affirmation of Grotius’s famous ‘etiamsi daremus’ proposition: the law of nature ‘would be valid even if there were no God’ (Wolff 1733a, § 20). Any denial of God’s existence thus does not entail that there is no law of nature for atheists. The question is, why should they have any obligation to obey it? Obligation to the law of nature is threefold. A natural obligation arises because the will is irresistibly drawn to perfection and natural law points the way to perfection by the actions it prescribes and prohibits. Since the human mind is able to see that this connection between free moral action and perfection is part of the divine intellect’s scheme of possibilities for humanity, people will also see the obligation as divine in character. Finally, 270

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German natural law there is an additional source of obligation in that the divinity reinforces the law of nature by reward and punishment (1733a, §§ 28–31; 1738–9, i, cap. 3). The law of nature is, simultaneously, descriptive of the connection between human action and human perfection and prescriptive of the moral necessity of realising this connection in our lives. It thus imposes the duties (sometimes officia, sometimes obligationes) of human life. In addition, it grants rights (iura), although Wolff is clear that ‘right originates in duty (obligatione), duty is prior to right’ (1740–8, i, § 24), where ‘prior’ refers to the order of justification. There are, then, rights given with human nature, i.e. which are innate (connata) and thus universal and equal. ‘Natural right’ and ‘natural duty’ are in fact complementary concepts, and ‘natural rights and natural duties correspond mutually’ (1740–8, i, prol. 1n). On the one hand, it would not make sense to ascribe duty without acknowledging the right to fulfil that duty. On the other hand, it would, for Wolff, be equally senseless to ascribe a right without acknowledging a duty, namely the duty to act in accordance with the law of nature. This is what ‘right’ means, according to Wolff, a power granted by the law of nature to pursue the goals set by that law, i.e. natural duties. So although natural rights are in a sense liberties, Wolff insists that they are not to be misunderstood as ‘licence’, i.e. areas of moral indifference. Alongside this scholastic notion of ius as morally objective, Wolff has a subjective conception which bears similarity with the ideas of Grotius and Hobbes. Wolff sees natural rights as properties of the individual person; this is what he means by saying that they, along with the matching duties, are innate. A number of modern scholars have maintained that his idea of the innateness of rights makes him a grandparent of modern ideas of human rights as shields against the use of power, especially by governments (Bachmann 1977, pp. 100–14, 1983; Garber 1982; Thomann 1964, 1969, 1974, 1977, and introductions in Wolff 1740–8, 1749). In this connection, it has been suggested that Wolff had indirect influence on the declarations of rights of both the American and French Revolutions and on the development of constitutionalism (Goebel 1918–19; Thomann 1968). However, there is scant evidence for Wolff’s impact on the Revolutions, and while he and his disciples clearly influenced German jurisprudence and its use in law reform, this was hardly characterised by the institutional entrenchment of individual rights (Klippel 1976, pp. 75–81, 1987, 1993). That is not surprising, for Wolff’s idea of the innateness of rights was in fact very different from the modern idea. 271

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Natural jurisprudence and the science of legislation Although basic rights are innate, this only means that they cannot be taken away, not that they cannot be given away. If rights could be withdrawn by one person from another, then the latter would not be a person, a moral agent, but simply a thing. Moral agency does include, however, the right to relinquish our rights, provided, of course, that such an action is in our best interests in pursuing the overall good, our perfection. A person cannot by such means stop being a moral agent, and in that sense one can speak of the basic right to moral freedom as a residual power; but a person can freely suspend the use of this power in any conceivable way. This is the basis for Wolff’s endorsement of the right to submit to slavery. ‘Libertas naturalis is narrowed down to the liberty of making contracts to revoke that very liberty’ and this is, for Wolff, the core of the moral life of the species (qu. Klippel 1976, p. 37). He schematises the moral career of humanity according to the types of trade-off people make of rights for security in the pursuit of perfectibility. The first great divider is the renunciation by some people of their right to complete control of their own persons and the right to equal access to the surrounding world. The former is the basis for (non-political) rule and thus for social groups, especially the household; the latter is the basis for private property. Before these contractual institutions, in the status originarius, people live with each other in both natural and moral equality (namely of innate duties to perfectibility), free from governance by others and free to protect themselves (and others) against attack, free to seek assistance from others, free to establish claims against others through contracts and to seek redress for injury, and free to lay claims to the use (not the ownership) of the surrounding world equally with others. These freedoms are humanity’s innate natural rights, and the original condition defined by them and their matching innate duties is neither asocial and isolated nor hypothetical but experienced historically. The lack of scope for perfection in the original state imposes a duty to seek beyond it, to the status adventitius characterised by private property and social hierarchies of authority. The same duty leads to the status civilis, the political society or state, and, eventually, to the civitas maxima, the international society. The original and the adventitious states together make up the state of nature, which is simply defined in contrast to the civic state, and the dividing line here is that the latter, the state, is not made by individuals but by the social groups in the adventitious state – typically households, represented by their (male) heads, and estates or communities based upon feudal tenure and represented by the lord. In other words, in the 272

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German natural law formation of the state, the relinquishing of rights is no longer in the hands of individuals. The purpose of the state is to secure the common good through the most effective pursuit of perfection or happiness. This purpose can be divided into three areas, according to the classic scheme, namely the goods of the mind, the goods of the body, and external goods (tranquilitas, securitas, vitae sufficientia). Wolff sets about explaining how the state should provide for its citizens in all three areas, and the result is an extraordinary theory of the total welfare state. There is no theoretical limit to the state’s pursuit of the welfare of its citizens, i.e. in making sure that they honour the three basic kinds of duties that make up morality; those to God, to others, and to ourselves. In this devotion to total human welfare, Wolff’s state is the epitome of much traditional Lutheran political thought (Link 1979, pp. 137–8). He does, admittedly, take up the traditional topos of distinguishing between perfect and imperfect duties (and corresponding rights), but this is nothing more than a distinction into more and less urgent duties from the point of view of the pursuit of the common good; it is two different ways of pursuing happiness. It posits no barriers to state activity by distinguishing between law and morality or between a public and a private sphere. Nor does it offer anything like Pufendorf’s and Thomasius’s delimitation of the political sphere from all other spheres of life, such as religion. For Wolff there are only prudential, not principled, limits to the state. Frederick the Great’s subjects may well have been relieved that he happened, as he said, to ‘wish that in my territories everyone may pray and fornicate as they see fit’, but at least some of them might have liked to enjoy such privileges on a more secure foundation than royal assent (qu. Blanning 1997, p. 544). The institutions that characterise the adventitious and civic states are seen by Wolff as contractual, but this has little to do with contractualism as it is understood in modern political theory (cf. Reill 1975, ch. 4). The contracts in question need not involve any intentional acts by the parties to them, nor do they need to be actual events. They are often nothing more than the moral relationships in which people de facto happen to find themselves, i.e. quasi-contracts or implied contracts. All they presuppose is that the parties to them are moral agents, i.e. persons subject to the duties of natural law. When Wolff speaks of contractual institutions he is articulating a theory of social phenomena as rationally structured relations between individuals and groups in which the role of people’s actual will and intentions 273

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Natural jurisprudence and the science of legislation is entirely contingent. More particularly, he is avoiding a will theory of contracts: contracts may or may not be willed, or intentionally instituted, but what decides their obligation is whether or not they promote the summum bonum. It is only on this understanding that we can make sense of one of the more puzzling features of Wolff’s theory of natural law, namely its ability to justify historically given social formations such as feudalism or slavery. The question of whether such institutions infringe individuals’ natural rights simply does not arise for Wolff because their very existence – which may have just or unjust origins – means that the people concerned do not live in the original state where moral life is characterised by natural rights and duties; they live in an adventitious state where authority, property, etc., produce adventitious duties and rights. Since any adventitious establishment by its very nature is the act of moral agents, its basis is contractual or quasi-contractual. While the parties to such contracts may have been morally misguided in entering into them, the existence of the resulting institutions creates a new moral situation. The only way of discussing the justifiability of such institutions, for example slavery or feudalism, is the same as for any social formation, namely in terms of its utility as a means to promote perfectibility. It is this basic thought that leads Wolff to view ethica, oeconomica, and politica as techne, in the classical sense as practical disciplines arranging means to the ends which are set by the theoretical discipline of jus naturae. This aspect of Wolff’s practical philosophy as a discipline that gives a reasoned arrangement or classification of all the known features of the moral world should not be overlooked in our modern concern with the normative status of natural law as the moral law. It is an aspect that brings his and similar systems of natural jurisprudence closer to Enlightenment ideas of histoire raison´ee. The most significant (quasi-)contractual institution is civil society. Apart from the ideal of an international society governed by law, civil society is the apex of humanity’s search for perfection-through-institution. The defining factor in civil society is governance, and Wolff presents a sophisticated theory of its foundation (Stipperger 1984). The presupposition is a social contract whereby the ‘multitude’ in the social state of nature becomes a people (gens or Volk; 1740–8, viii.5). This body, in a further contract of governance, decides the most fundamental question concerning government, namely whether to keep it to themselves, in which case a pure democracy results, or to transfer it to somebody else. In the latter case, we have to distinguish between two things that can be transferred, either the ownership of persons and their goods, in which case we have a slave society (imperium herile), or 274

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German natural law an ‘intangible thing’ (res incorporalis) called authority (imperium) the transfer of which, in a contract of subjection, creates the authority of political government (imperium civile). Having isolated slavery conceptually and thus prevented its confusion with absolute monarchy or the like, Wolff elucidates political government through some important distinctions. First, he distinguishes the right from its object, that is, that to which we have a right. The right itself can be more or less extensive; we can have full property right (jus proprietatis), or various degrees of dependent property rights, such as feudal rights and, even more dependent, fideicommissum, or we can have mere use rights (usufruct) (1740– 8, viii.39–40, 92, 95, 98–102). Similarly, the object of our right varies in completeness. It can be sovereign power (summum imperium), absolute power (imperium absolutum) in which the people may revoke exercises of power, or imperium limitatum in which the exercise of power is subject to constitutional law or the need for popular consent (1740–8, viii.45, 65–74). The point in these distinctions is that through them Wolff is able to provide an account of the full variety of forms of governance; he is not limited to the simple classical scheme of democracy, aristocracy, monarchy, and mixed forms. He is able to explain that a full sovereign power can be held by a less than full property right, his example being that of the Roman dictator’s use right to total power (1740–8, viii.70a). Similarly he can accommodate the various forms of less than full sovereign power which nevertheless are held in total property right, giving examples of separate powers as illustrations (1740–8, viii.65, 69, 72, 74, 95). The full significance of this formalistic theory of state and government in the Latin work can best be appreciated by briefly contrasting it with the German text. The German Politics (1736) is ambivalent. As has often been remarked, it appears, in many respects, quite Aristotelian. It sees the state as the fulfilment of the ethical life of the species, and it treats the state according to the Aristotelian forms of monarchy, aristocracy, democracy, and mixed forms. More fundamentally, it sees politics as a question of what is good and bad for the moral person whose nature is explained in the German Ethics (1733). Yet, on the other hand, Wolff presents the three basic forms of state as if they all in principle can be morally legitimate under natural law. This points to the formalism of the Latin work in which the fundamental question is not one of the moral goodness or badness of state forms but of juridical fact, namely, what can the parties in a given form of state be said to have ‘agreed’ to in a ‘contract’? This is reflected in the different grounds on which slavery is assessed as a form of governance in the German and 275

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Natural jurisprudence and the science of legislation the Latin works. In the former, slavery may be legitimate if it furthers the common good of those governed, for example while they are too ignorant to benefit from other forms of governance. But in the Latin work, the primary question is whether or not people have the right to give away their rights of freedom. The end of the latter road would be a complete questioning of the moral foundation of Wolff’s practical philosophy, namely the idea of an objective standard of moral goodness in the form of moral perfectibility demanded as a duty by natural law. In the Jus naturae (Natural Right, 1740–8) this idea is severely threatened by, but never relinquished to, the contractarian aspect of his thought which really demands a notion of subjective rights as the primary feature of morality. Wolff was unable to break out of this dilemma between objective law and subjective right, but his transition from an Aristotelian civic humanism, in juridical guise in the German Ethics and Politics, to a highly formal natural law theory of society and its many forms of governance in the Jus naturae was one of the more dramatic, if ill-perceived, episodes in the reluctant modernity of early modern political thought. While the potential for a subjectivist theory of rights in the Jus naturae remained obscure, it was clearly understood that the work’s factual, nonjudgemental treatment of all forms of governance meant that it could accommodate a historical approach to law and government and be adapted by those concerned with indigenous German laws and institutions in their historical particularity. This, and Thomasius’s emphasis on history, means that it is often difficult to maintain the textbook division between universalist natural law – whether Thomasian or Wolffian – and particularist historical law and the associated division between reformist absolutism and traditionalist ideals of estate-based governance. However, while Wolff could accommodate, Thomasius needed a historical approach. The Wolffian legacy was blurred further by its sheer magnitude; Wolffians were teaching throughout Protestant Germany in the third quarter of the century. In time, the category of Wolffian became less precise, appealing both to philosophers and legal theorists even when they were not Wolffians in any strict sense (Hammerstein 1983). Moses Mendelssohn is an example of the former, Gottfried Achenwall and L. J. F. H¨opfner of the latter (Altmann 1982; H¨opfner 1795; Mautner 1994; Mendelssohn 1983 [1783], 1997, pp. 295–306; Plohmann 1992). Even if not always distinct, the extraordinary extent of Wolff’s influence is clear and of major significance. His pure doctrine was taught in many universities, including Halle and Frankfurt-an-der-Oder, the two premier universities in Prussia. In Wolff’s own old university, the most faithful of 276

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German natural law his disciples, Daniel Nettelbladt, taught natural law for forty-five years; and in Frankfurt Joachim Georg Daries taught the subject with such regularity that by 1786 he had given his course one hundred times. Both wrote longlasting textbooks in natural law (Nettelbladt 1772, 1777; Daries 1762–3; cf. Landsberg and Stintzing 1898–1910, i, pp. 284–6, 288–99 and ii, pp. 192– 3, 195–9). The extraordinary demand for this tuition arose not least from the need to train the Prussian bureaucracy. It is thus possible to delineate in detail how the basic ‘value-scheme’ of the Prussian bureaucracy in the second half of the century was formed by the Wolffian natural law theory of life as the discharge of duties for the sake of the common good (Hellmuth 1985; cf. Melton 1988). This has lent depth to the older interpretation of the great codifications of law as profoundly influenced by Wolffian natural law (see pp. 257–8 above; cf. Winiger 1992). Wolff’s system was readily adopted in the universities of Catholic Germany, Austria, and much of Italy, where his natural law was seen as modernising the late scholastics (Bianco 1993; Bruch 1997; Hammerstein 1985). At the same time Wolff gained a certain entry into French Enlightenment thought, albeit of a still undetermined nature (Carboncini 1993). Apart from Vattel (discussed below), the main vehicle for Wolff in France was the popular miscellany of his writings translated by the Huguenot secretary of the Berlin Academy, Formey, though it is difficult to gauge how much this ‘Roman philosophique’, as he described it, was used (Formey 1741– 53, 1755, pp. 111–12; cf. Deschamps 1743–7; Hochstrasser 2000, p. 176). Formey’s early translation of excerpts from Wolff’s compendium, the Institutiones, seems to have had only limited impact (Wolff 1758).10 It has, until recently, been thought that the article on ‘Loi naturelle (morale)’ in the Encyclop´edie was cribbed by Diderot from Wolff, but we now know that its anonymous author took it nearly verbatim from Samuel Clarke’s Discourse concerning the Being and Attributes of God (1704–5), and we can be sure that Wolff had no invisible hand in the events of 1789 (Burns 1984; Thomann 1968). Like Grotius, Pufendorf, Thomasius, and many other early modern juridical philosophers, Wolff extended his ius naturae to ius gentium, and, with increasing clarity, the latter meant the moral–legal relationships between nations in the modern sense of sovereign states (cf. Cavallar 2002; Tuck 1999). However, this older ius gentium used the fiction of a civitas maxima, a 10 Rousseau nowhere mentions Wolff, though he knew Formey: Derath´e 1950, pp. 99–100, cf. pp. 31–2. Elie Luzac published a translation of the full compendium, Wolff 1772.

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Natural jurisprudence and the science of legislation universal political society, as the framework for understanding the international world; individual states were considered as members of this super-state in analogy with citizens of ordinary states. The analogy, of course, facilitated acceptance of de facto inequalities among states similar to those among citizens. It was Vattel’s merit to change this perspective fundamentally.11 He insisted on the equality of states considered as juridical (sovereign) entities, obviously drawing on his Swiss heritage (Barbeyrac and Burlamaqui) in formulating this view in terms of the equal rights of sovereign states. He rejected the patrimonial notion of the state that was pervasive in traditional natural law, including Wolff (Vattel 1916 [1758], preface, p. xvi; bk i, p. 61), and he even allowed that the people have residual rights of active resistance against tyranny (Vattel 1916 [1758], bk i, § 46; bk ii, §§ 55–6; Vattel 1762, pp. 348–9, 429–30). However, Vattel accepted too much of Wolff’s basic philosophy to have a coherent general theory of rights. He thought that the first moral law was to pursue perfection, and that this meant the contractual surrender of whatever rights were needed for the social purpose at hand. Publishing his work in the middle of the Seven Years War, to say nothing of debates about colonialism and empire, Vattel’s ambition was to create a practical manual for the conduct of international affairs, and, as is well known, this was largely fulfilled (Vattel 1916 [1758], i, preface, pp. xiv–xv, xxiii; cf. Ruddy 1975). His Law of Nations (1758) had both immediate and lasting impact on international law and was popular well into the nineteenth century (Manz 1971, p. 55). In Scandinavia, Wolff had a significant impact on university teaching, more with respect to theoretical than practical philosophy (Fr¨angsmyr 1972; Koch 2003, pp. 21–31, 76–99, 235–40). The most notable contribution was Friedrich Christian Eilschov’s lucid argument to include animals under natural law as full members of the moral community, on the basis that animals, pace Wolff, have reason that differs only in degree from that of humans (Eilschov 1747, 1748; cf. Koch 1976). In Dutch universities, Wolff’s presence was limited (Janssen 1987). But he gained a significant voice through the French translation of his Institutiones by Elie Luzac (Wolff 1772), who saw his heavily annotated edition as a continuation of Barbeyrac’s great work (Velema 1993, ch. 3). Wolff’s influence in Switzerland was underscored by Vattel (Zurbuchen 1998).

11 Vattel 1916 [1758], 1762. Cf. Hochstrasser 2000, pp. 177–83; Jouannet 1998; Ruddy 1975; Whelan 1988.

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German natural law 5

Immanuel Kant

Histories of moral and political thought have commonly left the impression that natural law was killed off by Hume, Bentham, and Kant, and then buried by historicism, idealism, and positivism. This is a less than adequate view of the transition from the eighteenth to the nineteenth century, especially with regard to the German-speaking world (Klippel 1993, 1995; Schr¨oder and Pielemeier 1995). The issue may be approached through a piece of contemporary evidence. In 1793 Karl Heinrich Heydenreich, professor of philosophy in Leipzig, wrote that if one considers the history of natural law theory from the point of view of the ‘more or less pure and complete presentation of its principles, then one can only accept two periods, that of uncertain treatment which stretches until Kant and that of certain treatment which was begun with Kantian moral theory (Sittenlehre)’ (Heydenreich 1793–6, i, p. 107). Heydenreich’s bombast was not simply the assertive triumphalism to be expected of a devoted Kantian but an opinion shared so widely that it made itself true (Kersting 1993, pp. 151–74; Klippel 1976, ch. 8). When Kant published his critical moral philosophy in 1785 and 1788, the categorical imperative was immediately taken as providing a new foundation of natural law theory. In fact, the Groundwork of the Metaphysic of Morals (1785) and the Critique of Practical Reason (1788) invigorated the genre to such an extent that when Kant at last published his own theory of law in 1797, a significant number of ‘Kantian’ works on natural law had already been published, and commentaries on Kant’s Doctrine of Right (1797) appeared within months of its publication. These works were by thinkers ranging from Jacobins to conservatives. Moreover, the debate about the shape of Kantian theory of law was taken up immediately in a lively manner in Denmark, where Anders Sandøe Ørsted’s revision of Kant and temporary following of Fichte produced a liberal rights theory in tension with the absolute monarch, Frederick VI (Ørsted 1797; Tamm 1976, pt 2). One of the founders of the university in Christiania (later Oslo) and a statesman in Norway after its separation from Denmark and union with Sweden (1814), Nils Treschow, was inspired in his liberal philosophy by the debate about Kant while still teaching in Copenhagen (Treschow 1798). In Sweden the Uppsala philosopher Daniel Bo¨ethius took up the Kantian renewal of natural law (Bo¨ethius 1799). The Kantian takeover of natural law can be seen as the outcome of a long struggle between the more or less direct heirs to the two ‘schools’ delineated 279

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Natural jurisprudence and the science of legislation here. More precisely, it can be seen as a victory for the metaphysical point of view of the Wolffians, though significantly transformed in the hands of Kant. The central change that took place was a shift from the metaphysics of natural law to that of natural rights, a process often obscured by the fact that both concepts in German commonly are denoted by the word Naturrecht. As the matter was clarified, Menschenrecht(e) (human right(s)) became the common word for the subjective concept, no doubt reinforced by the French droits de l’homme. From the third quarter of the century, there had been an explosion of interest in ‘anthropology’, the broadly empirical study of all aspects of human life and culture which was commonly thought of in English as ‘the science of human nature’ (Zammito 2002). A major factor had been the indigenous tradition, originating in Pufendorf and Thomasius and subsequently much developed, for seeing the moral and political institutions of life as ‘conventional’ in character and subject to historical study. This kind of approach was reinforced by the influence of Anglo-Scottish ideas of the history of civil society (Oz-Salzberger 1995, ch. 8). As far as natural law was concerned, the study of human nature in society and history led to a rejection of the notion of a state of nature as an (historically or logically) ‘original’ condition of humanity just as the historicity of founding contracts came under pressure. This turn towards historicism in political and legal matters was paralleled by a new interest in the empirical study of morality. In great part inspired by British moral and common-sense philosophy, German thinkers turned their attention to the problem of the mind’s moral powers as both cognitive and active (Kuehn 1987; Waszek 1988, ch. 2; van der Zande 1998). In traditional Leibnizian and Wolffian theory, the active moral power was reduced to an intellectual love of perfection brought about by purely cognitive, or theoretical, activity; the moral life was a life of metaphysical understanding. When this model was compromised by the admission that moral feelings had a role, we have the beginning of a shift towards the idea that moral theory is concerned with powers of doing things towards the world, including other people, rather than with mere cognition of the world. These two challenges to the German metaphysical tradition in terms of social historicism and anthropological empiricism were quashed by a series of reformulations of that tradition which culminated in Kant. The basic formula was to take over the new individualism and transform its empirical approach by focusing on a metaphysical view of the individual person. Thus the historicist rejection of the state of nature and the consequent historicisation of civil society could be avoided if one made the idea of a natural state 280

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German natural law into a conceptual component of human nature. That is to say, while the state of nature in the older natural law was a collective condition of humanity, in the new natural law of the later eighteenth century it became a condition of each person irrespective of time and place. In the older theories, the state of nature summarised those features of humanity (primarily our natural liberty and rights) which supposedly had to be discarded or transformed in order for political society to be possible. However, if these natural rights were part of each person’s humanity, they had to play a continuing role in legitimating authority. This idea of right as each individual’s natural liberty merged with the old idea of natural right as the right of free conscience, as had already occurred most strikingly in Rousseau, with whom more and more Europeans concurred in wondering how it was possible that ‘man is born free, and everywhere he is in chains’ (SC, i.1, p. 41). However, as we saw in the first section of this chapter, the right of conscience was simultaneously the duty to the right use of conscience, and this idea that a natural right is not simply a freedom but one with a prescribed, morally right, use remained integral to the new theories of rights. The second empirical challenge to the metaphysical tradition was met in similar fashion. The empirical study of the formation and function of moral sentiments can be set aside if man is naturally free. If the core of moral agency is the exercise of an inherent right grounded in a non-empirical (‘pure’) moral intellect, how the agent feels about it is of no relevance, let alone how it has come about. Irrespective of his actual circumstances, man as a rational being is a self-governing or autonomous agent. The central question, however, was whether this metaphysical individualism could account for society between individuals. Why should the autonomous acts of one individual be of any relevance to the similar acts of another? On what ground can we assume that one person’s rights entail another person’s duties? How can the moral world, in the widest sense of that term, be well ordered? That was the fundamental issue with which German political thinkers, and especially the early Kantians, wrestled in the 1790s (cf. Beiser 1987, 1992). This line of thinking was similar to Leibniz’s idea of universal harmony and to Wolff’s of the maximum happiness in creation as the inherent telos of social life; all stand in sharp contrast to the Pufendorfian–Thomasian minimalist idea of civil society as the avoidance of violence. For those Kant-inspired thinkers who dealt with the problem before the appearance of Kant’s own Metaphysics of Morals (1797), autonomy or self-legislation meant use of the categorical imperative as set out in the Groundwork of the Metaphysics of Morals. On this principle the moral world was 281

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Natural jurisprudence and the science of legislation divided into two broad spheres; those actions that were permitted because their maxims were universalisable; and those that were prohibited because their maxims were not universalisable. But this only said something definite about our duty in the negative sense, what not to do, while positive duties on the whole were left indefinite (for example, the duty to be charitable at best entails the vague injunction to consider giving something at some time to some charitable purpose). Outside the sphere of duty, the range of human action consisted of what was permissible, and for some thinkers, such as Fichte in his early work, this wide field was that of rights (Fichte 1796–7). The young Fichte in particular saw the Hobbesian logic of this troubling conclusion with greater clarity than many political thinkers before or since. There might not be any principled entailment between right and duty; harmony between autonomous individuals might not be a moral but a purely prudential matter (or, for those who looked to Hume or Burke, a matter of slow adaptation through history). In order to sustain such views and retain a concept of rights, Fichte and his contemporaries would have had to develop a theory that gave the concept of rights moral standing independently of the concept of duty, so that rights were not only ‘subjective’ in the sense of being the characteristic of moral personality but also in the sense of not presupposing an objective and orderly correlation of right and duty. Most of these thinkers shied away from such ideas, often begging the question in the same way as subsequent scholarly commentators by insisting that ‘right’ means ‘being owed something as a duty’. Kant himself required more forceful measures than those of definition to keep the moral world well ordered and yet a matter of right. The core of the Kantian method was an appeal to common moral experience as being one that inherently involved freedom and an elaboration of what such freedom entailed. However, since the experience of freedom in moral decisions seemed impossible to ascertain empirically, the experience to which appeal was made had to be purified. To persons not already persuaded by Kant, this procedure has always appeared entirely question begging since the criterion of purification seems to be that one is free of ordinary ‘sensuous’ influences on one’s decision-making. Indeed, it has been argued that the Groundwork is not so much an argument as an inculcation in a spiritual exercise to prepare the mind for the experience of freedom proper (Hunter 2002). Irrespective of how Kant’s appeal to a supposedly ‘pure’ experience of moral freedom is interpreted, his assertion is the well-known claim that such experience entails our being both free and yet subject to ordinary causal influences; 282

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German natural law and the most obvious way of reading it is as the metaphysical idea that our noumenal self is part of a realm outside time, space, and causation, while our empirical self is in the world of the senses (cf. Ameriks 2000a, intro. and pt 1). However flimsy these presuppositions may seem to the uninitiated, there can be no doubt that Kant’s transformation of the metaphysical tradition condemned Leibniz and Wolff to the status of mere predecessors, and Pufendorf and Thomasius nearly to oblivion. Kant’s theory of law and the state in the Doctrine of Right was the outcome of more than thirty years’ attention to the topic (xix, 422–613, xxiii, 207–420, esp. 207–370).12 He lectured repeatedly on natural law, using the textbook of Achenwall and P¨utter (1750), and he foreshadowed his own book in correspondence and in the more famous critical works on moral philosophy. Yet the book significantly changed natural law and developed the critical moral philosophy in a way that surprised his followers.13 At the heart of Kant’s revision of the metaphysical natural law tradition was his notion of autonomy; natural law is not external to the moral agent; only self-legislation can be the source of legitimacy. However, in order for such self-legislation to yield a doctrine of right and a foundation for the state, the self in question must be conceived on empirical assumptions that had not been made in the Groundwork and the second Critique. According to the moral law, as stated in the Groundwork, ‘a rational being must always regard himself as lawgiving in a kingdom of ends possible through freedom of the will, whether as a member or as sovereign’ (iv, 434 [1785]). But what is required of a rational being’s legislation when this kingdom of ends is considered as embodied in a world of empirical phenomena, in which people have an unknowable variety of goals (‘ends’)? Kant thinks we must divide this into two questions. First, what can reason tell us about the mode of pursuing our goals in abstraction from what those goals actually are? Secondly, are there any goals we ought to have, not as means to something else but as ends in themselves (‘categorically’)? The former of these practical questions is addressed in the ‘Metaphysical First Principles of the Doctrine of Right’, the latter in the ‘Metaphysical First Principles of the Doctrine of Virtue’, which together make up the Metaphysics of Morals.14 12 Kant’s unpublished papers are referred to by the volumes and pages of the Akademie Ausgabe (Kant 1900–). In references to Kant’s published works, the particular title is identified by its year of publication while volumes and pages are those of the Akademie Ausgabe; the translations all reproduce the Akademie Ausgabe’s volume and page numbers. 13 Brandt 1982a; Busch 1979; Kersting 1993; Ludwig 1988; Ritter 1971. 14 The text of the Doctrine of Right is corrupt in several places and has been restored by B. Ludwig in Kant 1986. I refer to his edition but also to the pages of the Akademie Ausgabe. Ludwig’s rearrangements

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Natural jurisprudence and the science of legislation We may start from Kant’s insistence that the embodied person, as a matter of rational necessity, has a right to his or her freedom (vi, 237–8 [1797a]).15 This means the right to have possession (not property) in one’s self, one’s actions, and the positions in time and space that are entailed by being an embodied self in action – the ground one occupies, the space one fills, the air one breathes, and so on. To deny human beings these things would mean to deny their status as moral persons. However, this does not mean that one has a right to be in any particular place in the world for any particular span of time, holding on to any particular thing (Kant gestures towards Locke’s example of picking an apple; vi, 250). Where, when, and how a person is in the world are entirely contingent matters, empirical questions. From the point of view of pure reason (as a matter of abstract principle), any part of the world – any constellation of things and events in time and space – is open as a possibility for any person. Furthermore, we must assume as a possibility – nothing stronger – that any person may have desires for another position (for other things) in the world than that which he or she happens to have. Finally, we must allegedly assume the empirical fact that the world is finite. Although we at any particular time may be able to go elsewhere, from the point of view of pure reason – in abstraction from the particular situation of specific individuals – humanity as a whole in its life tenure of the world must divide it up. The division provided by the vicissitudes of history – where one happens to find oneself – has no standing in reason: it might all have been entirely different ‘with as much reason’. In other words, the empirical links between persons and the things in the world (such as physical control or addition of labour) have no rational standing and need replacement by the purely ideal links of reason. If it is permissible to use force to prevent any other person from interfering in the relationship between oneself and an object of one’s choice, then that object is one’s property. Kant’s concept of permissibility is here central (Brandt 1982a; Szymkowiak 2002). You need no special justification in defending your self, your actions, and their immediate objects against are reflected in the English translation (Kant 1996a). For general commentary, see: Batscha 1976; Brandt 1974, pp. 180–201, 1982b; Columbia Law Review, 87 (1989): ‘Symposium on Kantian Legal Theory’; Deggau 1983; Dreier 1986; Ebbinghaus 1986; Goyard-Fabre 1996b; Gregor 1963; Guyer 2000, ch. 7; Hunter 2001, ch. 6; Jahrbuch f¨ur Recht und Ethik/Annual Review of Law and Ethics, 5 (1997); Kaulbach 1982; K¨uhl 1984; K¨usters 1988; Maus 1992; Mulholland 1990; Murphy 1970; Rosen 1993; Schneewind 1993, 1998, ch. 23. 15 This and the next paragraph attempt a reconstruction of the main argument in pt i, ch. 1 of the Doctrine of Right (vi, 245–57).

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German natural law interference; the person who knocks the apple out of your hand is interfering with your basic right of liberty. But if you want to use force to keep others away from anything that you lay claim to outside this immediate sphere of your person, you need exemption from exactly the ban against interfering with the other’s basic liberty. This exemption Kant calls the Erlaubnisgesetz, the law of permission (vi, 247 [1797a], cf. viii, 348 n [1795]). The moral life of humanity considered only as occupiers of the empirical or phenomenal world consists of the search for ways of realising this law. The principle for this search is the principle of right; the method is the institution of the state and the universal society of the world. We must understand the principle of right in comparison with the principle of virtue (vi, 218–21 [1797a], and vi, 379–413 [1797b]). The former regulates our actions, the latter the ‘maxims’ of our actions. When we deal with persons considered as members of the realm of freedom, reason demands that we respect the humanity of all, including ourselves, equally as an end of inherent value. The maxims upon which we act must, therefore, be equally applicable to all, for they must be maxims of respect for humanity. These fall into two broad categories of duties of virtue, namely the duty to self-perfection and the duty to seek the happiness of others. When we deal with persons considered only as joint occupiers of the world, we abstract from maxims and ends. Reason then demands that the exercises of our freedom in action be mutually compatible, which, more specifically, means that we are only permitted to use force against others when this could become a universal law. Just as the categorical imperative in its ethical or virtue aspect is a principle of reciprocity in the maxims we adopt, so in its juridical or rights aspect it is a principle of reciprocity in the actions we perform. Those are the basic thoughts behind Kant’s division of the moral world into ethics or the doctrine of virtue and law or the doctrine of right; between what is not enforceable and what is; between internal and external. A world in which the law of permission on every occasion of its use was truly universalisable would be a world without any conflict between people’s claims on the things of the world, and this would constitute complete justice in the distribution of property. This is a utopian, limiting concept for humanity’s moral striving; the most significant milestone on the way is the state. The rationale for the state is to ensure laws of permission that are universal for its members so that their takings from the world can be secured by being mutually compatible. Kant expresses this by saying that without the state – in the state of nature, to use the traditional language – all 285

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Natural jurisprudence and the science of legislation ‘property’ is merely provisional; the state makes it peremptory (though true finality would in fact only be achieved in the universal society) (vi, 255–7 [1797a]). Before turning to Kant’s theory of the state, we must consider the scope of the notion of property (vi, 258–96 [1797a, pt i, ch. 2]). While he has by far most to say about property in things (vi, 260–70), he includes in the concept of property the other part of our environment, other people. We cannot, of course, own others as persons since the notion of a person entails freedom or autonomy. We can, however, own aspects of other people, on condition that this does not infringe the autonomy of the other, and that means that the ownership in question has to be co-ownership. Kant divides such coownership into two types. We may unite our will with that of another about some particular aspect of that other person’s behaviour (typically an individual action). Such a uniting of wills is a contract that creates a right against the other person (a ‘personal’ right) and its most important object is the transfer of property (vi, 271–6). Or, we may unite our will with the will of other persons about our control of some general aspect of their lives or mode of behaviour to the exclusion of such control by themselves or others. This form of contract creates the rights between spouses, parents, and children, and masters and servants (vi, 276–84 and 358–61). These rights do not take away the moral status of the persons against whom they are held (in effect, wives, children, and servants), and the husband, father, and master is not a moral representative of these persons. Consequently, Kant does not adhere to the traditional natural law idea that political society is composed of family societies through a contract of the heads of households (cf. B¨ohme 1993, pt 1). The state is composed of individual property owners. This leaves a question mark over the political status of the propertyless. Kant’s theory of the state is a direct implication of his theory of property, which again is a specification of the principle of right that is a form of the categorical imperative. At the same time, Kant has the reputation of being a major representative of the idea of contract as the foundation for the state. What is the relationship between property and contract in the theory of the state (vi, 305–13)? Kant often employs the traditional language of a contract that bridges the state of nature and the political state, and this may tempt his readers into thinking in terms of a sequence, whether historical or hypothetical. But he did not think that there ever was, or could be, a ‘state of nature’ in the sense of a condition in which there was neither property nor power relations between people. From the hand of nature we have just one ‘juridical’ feature, namely the natural right to freedom 286

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German natural law without which we would not be persons but things. But the exercise of that right necessarily means occupation of parts of the world, as we have seen, and this again puts us into relationships with other people. The state of nature is therefore a rightful condition in the sense that the same principle of right applies there as in politically organised society. But in the nonpolitical state, natural right rests on the individual will of each person, not on the will of humanity, although humanity holds the world collectively. Accordingly, whether there is peaceful harmony or war in the state of nature is a purely contingent, empirical matter. The point of the state (ultimately cosmopolitan society) is to remove this contingency (viii, 349 [1795]). We may say, then, that people inevitably live ‘socially’ and subject to the principle of right. To do so in accordance with rational principle is to live politically, and this can be encapsulated in the idea of a contract. The political contract is a requirement of pure reason not to be in conflict with itself and, since reason recognises no distinction between people, this means that there has to be unity of will among all members of the state about the distribution of property. The contract is a test or criterion for justice in the exercise of sovereign power by any state, not a founding act. It is best to think of the contract as a basic constitutional principle or principle of legitimacy, clearly inspired by Rousseau’s notion of the general will (e.g. vi, 315–16 [1797a]). The united will of the people is not an empirical, historical concept which has to be ascertained through voting. It is a metaphysical prerequisite necessitated by the idea of right as a condition of complete reciprocity of rational owners of property, a prerequisite that can be presented as purely ‘formal’ once the speculative premise has been accepted. This requirement to the exercise of sovereignty can be honoured, in principle, by any type of government, including absolute monarchies. Political society that is legitimated in this way is a purely rightful condition which can be explicated by three basic principles: ‘1. The freedom of every member of the society as a human being. 2. His equality with every other as a subject. 3. The independence of every member of a commonwealth as a citizen’ (viii, 290 [1793], cf. vi, 314 [1797a]). Freedom is stipulated as the moral condition of humanity, and this cannot be changed through political institution. That is the basis for Kant’s severe criticism of all forms of paternalism in politics – but of course paternalism is defined as the absence of exactly this kind of freedom. Equality is implied by the idea of governance by universal law, which is the essence of the state. This is the premise for Kant’s harsh rejection of all inherited status or office – naturally understood as the denial of this equality (viii, 292 [1793], vi, 324–5, 328–9, 369–70 287

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Natural jurisprudence and the science of legislation [1797a]). But what is meant by independence as a citizen, i.e. as a co-legislator with all other citizens? (viii, 294–6 [1793], vi, 314–15 [1797a]). Kant’s explanation is that a person who has to sustain life exclusively by labour which is directed by others cannot be an ‘active citizen’, i.e. one who is considered part of the united will of the people. For this, property sufficient for living is required. ‘Passive’ citizens, by contrast, include wives and domestic servants, to whom only the civic principles of freedom and equality extend. Aside from the fact that he never provides any satisfactory explanation of the traditional notion of the man as master of the wife, Kant’s argument seems problematic in two respects. He does not give any clear criterion for the degree of control over one’s labour that is required for one to be considered independent. He does not stick consistently to the production of exchangeable goods as the criterion but seems to be bound by traditional ideas of household authority. More seriously, from a Kantian perspective, even if we could imagine a member of the commonwealth who held no property whatsoever, no external ‘mine’ but only the internal ‘mine’ that is unavoidable in the human condition, such a person would presumably be subject to the requirements of practical reason and thus surely have a duty/right to have his or her will counted in the rational exercise of sovereignty. While the Kantian state is in a sense based upon property, this does not entail that it has to be a corporation of property owners. If the state really is a requirement of reason – namely to live consistently or by universal law – then it must mean a requirement of anyone’s reason, whatever property life may have brought them into. The sovereign governance may be by the will of all, which is republicanism, and demanded by practical reason, or it may be by some particular will of one or more individuals, which is despotism and against reason (viii, 349–53 [1795], vi, 340–1 [1797a]). However, any of the traditional forms of state – autocracy, aristocracy, or democracy – may govern in a republican manner – a kind of ‘as-if’ republicanism (cf. vii, 90–1 [1798]).16 Whatever its form, the state’s legitimacy stems from implementing the idea of the contract by governing as if there were a separation of powers (viii, 351–2 [1795], vi, 313, 315–20 [1797a]). The legislative makes general laws in the name of the united will of the people, while the executive as an agent of the state applies law in particular circumstances, and the judiciary resolves conflicts through juries that determine guilt and judges that apply the law. 16 In Perpetual Peace (1795), democracy, meaning direct democracy, is ruled out as inherently despotic (viii:351–2).

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German natural law In a fully republican state, the executive is subject to the legislative in the sense that the latter can disempower or change the former, but the executive can never be subject to punishment since this would turn the legislative into an executive power. More generally, the legislative cannot be the executive government since the latter must be subject to law, which the former cannot be. In other words, politics is largely reduced to abstract legislation on the one hand, and administrative procedure on the other. That is true, however, only of republican governance in abstract reason. Kant is well aware of, and has much to say about, politics in the historically given world, and the essence of his message is, not surprisingly, that such politics ought to be under the influence of the demands of reason he sets out. This implies his total rejection of revolutionary changes of state forms and it is the basis for his well-known theory of the role of publicity. Since practical reason claims governance by general law, the use of force is a contradiction: logically there cannot be a right to revolution (vi, 317–23, 370–2 [1797a]). There is, however, a right to passive resistance in situations where active compliance would imply that people deny their personal autonomy (autonomy being Kant’s replacement of duty to God in traditional resistance theory) (vi, 371 [1797a]; cf. Arntzen 1996). Furthermore, since the life of reason is argument, freedom to argue is demanded as a basic right by our very condition as moral beings. A free public sphere of opinion, or publicity, is thus indispensable and cannot legitimately be obstructed (viii, 33–42 [1784], viii, 304–5 [1793], viii, 381–4 [1795], vii, 17–75, 89– 91 [1798]; cf. Brandt 1987; Habermas 1989; Laursen 1992, ch. 9; Lestition 1993; O’Neill 1989, ch. 2). In the historical world, this sphere is the vehicle for political change, for it is here that kings and philosophers can meet, even if their roles cannot and should not be united (viii, 369 [1795]). The process of creating a public sphere of reason encompassing both ruler and ruled was Kant’s answer to the question, What is Enlightenment? (cf. B¨odeker and Hermann 1987; Hinske 1989; Laursen 1989; Schmidt 1989, 1996; Schneiders 1974). This hallowed idea is, however, rather self-serving. For the point about the historically given world is, of course, that it does not consist of rational members of the realm of freedom, but of individuals and groups with all manner of temporal ‘sensuous’ interests, and the Kantian argument lends no legitimacy to the liberty of discussing such interests per se, or in their own right. The point of Kant’s argument is to single out the pursuit of pure rationality and the postulated freedom; it is in the service of these particular values that the free public sphere is promoted. This was, in a sense, his particular interest 289

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Natural jurisprudence and the science of legislation as an educator and public intellectual and it has been argued that it was his sectarian propagation of that interest on behalf of the philosophical faculty against the theological and the juridical faculties that led the Prussian king to censor Kant’s publishing activity (Hunter, 2005). True to his presupposition that the moral world must by its nature be well ordered, Kant thought that conflict, even the possibility of conflict, is a sign of unreason, a sign that behaviour is not governed by principle (cf. Saner 1973, pt 3). Not least, this also applies to war. The formation of states is thus not enough to satisfy reason; we must pursue a legal order between states and, eventually, a cosmopolitan society and right that encompasses all states and individuals (viii, 307–13 [1793], viii, 383–5 [1795], vi, 352–3 [1797a]; cf. Cavallar 2002, ch. 6; Gerhardt 1995; Klemme in Kant 1992; Tuck 1999, pp. 207–25). Kant does not conceive of the latter as a world state; he rejects this because it would be impossible to have institutionalised enforcement of rights between states. Cosmopolitan right must be voluntary, and it is therefore crucially dependent upon the progress of republicanism in the world. This is so because despots, who by Kant’s definition act on particular not general wills, cannot exercise voluntary adherence to an international legal order as a matter of principle, only as a matter of prudence. Furthermore, it is much more difficult for a republic than for other governments to go to war since war requires a united will to sacrifice life and property. Finally, the separation of powers in a republican government is in itself the kind of voluntary living by the principle of right that is required to secure a perpetual peace, which is the ultimate duty of right demanded by practical reason (vi, 354–5 [1797a], vii, 85–6 [1798]). Kant’s new ‘tone of superiority in philosophy’ – to echo one of his own titles – has been overwhelmingly successful in determining how the history of philosophy in general should be seen (Haakonssen 2006). In the philosophy of law, it has persuaded most commentators that his own enterprise was in an entirely different category from that of the Leibnizians and Wolffians and that the Pufendorfians and Thomasians were hardly philosophers at all.

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10 Natural rights in the Scottish Enlightenment jam e s moore

1

The context of Scottish natural jurisprudence

One of the notable achievements of recent scholarship on moral and political thought in eighteenth-century Scotland has been a recognition of the importance of the early modern natural rights tradition for what has come to be called the Scottish Enlightenment. The manner in which the natural rights theories of Grotius, Hobbes, Pufendorf, and Locke were received, adapted, criticised, and transformed has been narrated and interpreted from different points of view.1 It has become increasingly evident, in part as a consequence of this scholarship, in part as a result of research into the history of Scottish universities, that natural jurisprudence constituted an integral part of the moral philosophy curriculum at the universities of Glasgow, Edinburgh, and Aberdeen (only St Andrews was the exception) from the 1690s to the late eighteenth century (Emerson 1972, 1995; Sher 1985, 1990; Wood 1993). Gershom Carmichael, Francis Hutcheson, Adam Smith, and Thomas Reid at Glasgow; William Law, William Scott, John Pringle, and James Balfour at Edinburgh; and George Turnbull and David Verner at Aberdeen all lectured on natural rights theories. What led these professors, university councils, and noble patrons to conclude that students should be instructed in the literature and language of natural rights? In the post-revolutionary world of the 1690s, there was the compelling practical political consideration that university students, the future political leaders of Scottish society, be made aware of the errors and dangers of prerevolutionary political thought. In the natural rights theories of Grotius, Pufendorf, and, especially, Locke, students would find erroneous political theories – patriarchalism, the divine right of kings, indefeasible hereditary right – examined, analysed, and confuted. They would be directed by natural 1 Forbes 1975, 1982; Haakonssen 1981, 1989, 1996a; Hont 1987; Hont and Ignatieff 1983b; MacCormick 1982; Stein 1970, 1980.

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Natural jurisprudence and the science of legislation rights theorists to a new range of questions, more consistent with the new order of things. Is there a law of nature, and, if so, how does it oblige? Is the natural condition of mankind a condition of sociability or of war? Do individuals have a natural right of self-defence, of liberty, of property? Is there a natural obligation to keep promises? Do governments have their origin in the consent, express or tacit, of the people? The persistence of patriarchal and feudal institutions in Scotland, and the threat that the pre-revolutionary order would be restored – a menace underlined by the Jacobite rebellions of 1715, 1719, and 1745 – presented recurrent challenges to Scottish moralists. In these circumstances, it is understandable that natural rights theories would be employed not only to expose the injustices of feudal societies but also to justify social change. There were as well more academic reasons for the turn to natural rights theories. The moral philosophy taught in Scottish universities in the seventeenth century was typically a form of Aristotelian scholasticism.2 In light of the experimental methods employed by natural scientists, the methods and arguments of Aristotelianism had fallen out of fashion. The systems of Grotius, Hobbes, Pufendorf, and Locke were all opposed to scholastic Aristotelianism. It remained a question for Scottish moralists to determine the moral psychology or motivation that might account for rights and virtues better than the scholastic theory that all men long for beatitude or lasting happiness. The differences that figure most prominently in the juridical debate engaged in by Carmichael, Hutcheson, Hume, Lord Kames, and Adam Smith turned upon their different understandings of the passions and sentiments deemed to prompt men to acknowledge and enforce the rights and obligations of men and citizens. University chairs were coveted, in eighteenth-century Scotland, by some of the ablest individuals of that era. Smith observed that, whereas in France and England talented scholars and writers were frequently drawn to the church, in Scotland, and in the other countries of Reformed Europe, ‘the most eminent men of letters . . . have, not all indeed, but the far greater part of them, been professors in universities’ (WN, v.i.g.39, p. 811). The authority of university professors extended beyond the ranks of students formally enrolled in classes. Their lectures were attended, their books were read, and their presence solicited in select societies and clubs by men and women who were eager to be acquainted with their ideas and to engage 2 It was a requirement of the Visitation Commission at Glasgow in 1664 that ‘Aristotle his text be diligently and succinctly gone through’: Glasgow University Archives 26631 (1664) 12.

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Natural rights in the Scottish Enlightenment them in debate. But it is worth remarking that many of the same moral philosophers (including some of the most distinguished among them) who taught natural jurisprudence in the classrooms wrote in a different idiom for adult readers. Francis Hutcheson made it clear to readers of his Latin compendium of moral philosophy, where his treatment of natural law themes was adumbrated, that it was a work intended only for students in universities; when he wrote for mature readers, Hutcheson wrote on virtue, on moral affections, and the moral sense (Hutcheson 1747, p. iv). Smith’s lectures on jurisprudence were never published in his lifetime; he gave priority to the moral sentiments when writing for publication. One may expect to discover accordingly evidence of tension in the natural jurisprudence of Hutcheson, Smith, and others, as they sought to reconcile their natural law theories with their other philosophical commitments. David Hume, arguably the most eminent philosopher and man of letters in eighteenth-century Scotland, did not occupy a chair of moral philosophy in a university. The story of the endeavours of his friends to secure a university appointment for him has been told by his biographers (Emerson 1994; Stewart 1994). It has been remarked that Hume devoted a large part of his earliest work in moral philosophy to a consideration of natural rights theories (Forbes 1975, 1982; Haakonssen 1981, 1989, 1996a). It has also been observed that the character of his responses to the several questions posed by the natural jurists has much in common with the answers given by Epicureans and sceptics, both ancient and modern (Moore 1988, 1994). It is accordingly necessary to consider the problematic character of the relationship between natural rights theories and scepticism in the moral and political thought of Hume in what follows. Students of civil law in eighteenth-century Scotland were understandably attracted to the study of natural law; for the law of Scotland was much indebted to Roman civil law, which was in turn agreed to be derived from principles of natural law (Stein 1963). Professorships of civil law were created at the Universities of Edinburgh and Glasgow in 1710 and 1714 respectively, but these professors were prevented from offering instruction in natural law, on the grounds that such teaching would invade the academic jurisdiction of moral philosophers (Cairns 1993, pp. 155–7). One jurist who was not inhibited in this way was Henry Home, Lord Kames, who made extensive use of natural law theories in his writings on jurisprudence and on moral philosophy (Lieberman 1983; 1989, pp. 144–75). He maintained that all his contemporaries had been pitifully deficient in their understandings of obligation. His writings on jurisprudence, together with the testimony of 293

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Natural jurisprudence and the science of legislation contemporaries, suggest that he was among the earliest, and arguably the first, Scottish thinker to elaborate the four stages theory which would come to be employed by so many Scottish moralists, jurists, and historians to explain the history of societies and their legal arrangements. Among the most celebrated Scottish thinkers of the age of Enlightenment for his writings on ethics and political economy, Adam Smith must now be recognised to have been an accomplished theorist of natural jurisprudence (Cairns 1993; Haakonssen 1981; Hont and Ignatieff 1983b; Skinner 1993; Winch 1993). Although Smith distinguished the spheres of ethics and jurisprudence more sharply than his predecessors or contemporaries, he imported from his ethics to his jurisprudence his understanding of the passions and the sentiments that prompt men to seek justice and support enforcement of the natural and sacred rights of mankind. Like Kames, Smith was deeply impressed by the injustices of feudal society, and by the need to explain and justify what he took to be the natural course of social change. His teaching and writing on that subject would lead beyond natural rights theories to political economy. Not all courses in moral philosophy offered in Scottish universities in the eighteenth century incorporated the intellectual agenda of natural jurisprudence. There were professors of moral philosophy who abjured the discourse of natural rights: William Cleghorn in Edinburgh; David Fordyce and James Beattie in Aberdeen. By the late eighteenth century, for a variety of reasons, the natural law tradition was superseded by a different range of questions and inquiries. It will be necessary to explain, briefly, how these enquiries came to replace natural jurisprudence in Scottish universities at the end of the eighteenth century. The ensuing discussion will endeavour to answer the following questions. How did the early modern natural law tradition come to be established in the moral philosophy curricula of Scottish universities? How did moralists such as Hutcheson reconcile their natural rights theories with their commitment to the very different intellectual tradition of civic virtue? Is Hume’s moral and political thought made more intelligible when it is located within a construction of the early modern natural rights tradition, or is it better understood as a sceptical response to that tradition? What considerations prompted Kames, Smith, and others to transform juridical speculation about the right of property and the right to punish into an enquiry concerning the history of societies? Finally, what were the factors that persuaded Scottish moral and political theorists to turn away from the natural rights tradition late in the eighteenth century? 294

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Natural rights in the Scottish Enlightenment 2

Academic reform and the law of nature

In 1690 the Scottish parliament enacted a law which stipulated that all principals, professors, regents, and masters in universities, colleges, and schools in Scotland had to subscribe to the Confession of Faith of the newly established Presbyterian Church and swear allegiance to their majesties, King William and Queen Mary. In these circumstances, many resigned, or were obliged to resign, their positions. These professors had been appointed in an era – following the restoration of monarchy in 1660 and the imposition of a uniform liturgy in the Churches of England and Scotland in 1662 – when moral philosophy was taught in accordance with the principles of Aristotelian scholasticism. It was a system of morals which followed a fourfold division of the subject: the supreme good or final cause of moral life was conceived to be beatitude or lasting happiness; the formal causes of moral conduct were the intellect and the will, the faculties that direct our actions to beatitude; the material causes of lasting happiness were the appetites, passions, and affections; and the efficient causes, the effective means of attaining beatitude, were the virtues. This system was held to be consistent with the political principles of the Restoration crown and church: absolute monarchy, indefeasible hereditary right, and the duty of loyalty or passive obedience of subjects to their rulers. Only an absolute monarch could provide the single-minded direction of subjects so necessary for public happiness; the claims of hereditary right were consistent with the laws of inheritance of private estates and with the natural affection of parental love and filial respect; and, among the virtues, none was more important than obedience to sovereigns. It was this controversial combination of scholastic ethics and divine right theory that moral philosophers attempted to counter in the post-revolutionary era by enlisting in opposition to it moral and political theories based upon the law of nature. The issue was joined in 1695 when representatives of the four Scottish universities found it impossible to agree upon a moral philosophy syllabus. The course had been proposed by a philosophy regent of the Restoration era, John Tran, appointed at Glasgow in 1669. He had been regarded with suspicion on political grounds by commissioners who visited the university in 1690 to administer the new oath of allegiance.3 His approach to moral philosophy was equally suspect in the judgement of representatives from Edinburgh and St Andrews. In their opinion, the author had ‘not at all distinctly treated of the law of nature 3 Glasgow University Archives 26631 (1690) 38.

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Natural jurisprudence and the science of legislation though it be the great foundation of all ethics’; he was ‘too much addicted to the old logical method of assigning efficient, material, formal, and final causes . . . which method seems not only needless, but often ridiculous’. The author had made passing references to the law of nature but he had made it part of the eternal law in the manner of Thomas Aquinas: ‘he confounds lex aeterna and naturalis’, whereas ‘we think the eternal wisdom of God is improperly called a law, neither can we understand what our author means by an eternal law distinct from the law of nature’.4 The fundamental problem with the scholastic Aristotelian theory of natural law was theological. That theory of natural law supposed that human beings could participate, albeit imperfectly, in the Supreme Being, in the mind of God, or the eternal law. In Reformed or Presbyterian theology, no such participation was possible. Men and women do not participate in the real presence of God, which is merely signified. The mind of God is signified to us by revelation; but the same critics insist that to cite scripture is ‘not at all to philosophize’. The mind of God is also made known to us by the nature of things. Such knowledge of the divine mind is properly called the natural law. The principal critic of Aristotelian scholasticism in this debate was William Law, a regent at Edinburgh, and the first professor of moral philosophy at that university, from 1707 to 1729. Law urged his students to make use of the methods of experimental science in the study of the law of nature. He proposed that by such study we discover that we are obliged to observe that law by the rewards and punishments imposed by God. Law perceived his understanding of the law of nature to be consistent with Pufendorf’s account of the rights and obligations which follow from the duty to cultivate sociability (Law 1705). In this respect, he concurred with the view of his colleague, William Scott, who held, with Pufendorf, that the fundamental duty of the law of nature is that every man ought to preserve and cultivate sociability. Scott maintained further that free men can only put themselves under government by their own consent, and that such was the case in Scotland in ancient times (Scott 1699). Scott also edited and annotated selections from Grotius in the expectation that he would be made professor of the law of nature and nations; he succeeded Law as professor of moral philosophy in 1729 (Walker 1985). 4 Edinburgh University Library, MS MC 1.4 TT (1695): ‘Animadversions of the University of Edinburgh upon the Ethics of the University of Glasgow’; ‘Animadversiones Facultatis Artium Universitatis Sancti-Andreae in Philosophiam Moralem Glasguensem’.

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Natural rights in the Scottish Enlightenment 3

Gershom Carmichael: reformed scholasticism and natural rights

The moral philosopher who contributed most significantly to the establishment of the natural rights tradition in the universities of Scotland at the turn of the eighteenth century was Gershom Carmichael, a regent at Glasgow and its first professor of moral philosophy (Moore and Silverthorne 1983). Throughout his academic career, Carmichael identified the study of moral philosophy with the study of the natural rights theories of Grotius, Pufendorf, and Locke. His supplements and annotations to Pufendorf’s On the Duty of Man and Citizen made Carmichael’s ideas available to a wider readership in Britain and Europe (Carmichael 1724, 2002). The distinctive feature of Carmichael’s adaptation of Pufendorf’s natural jurisprudence was his insistence (with Grotius and Locke) on the natural rights of individuals. The manner in which he justified these rights would have implications for the work of his successors. Like William Law and other philosophers of the post-revolutionary era, Carmichael repudiated the Aristotelian method of reasoning. In the preface to the last of his published works, he declared: I have always avoided the forms of speaking of the Aristotelian school, which are obscure, ambiguous, and, as it were, deliberately fashioned for deception; nor did I think they were made any more sacred because they were blended into sacred matters, and for want of a better philosophy, applied to the explanation of the gravest topics of religion. (Carmichael 2002, p. 229)

Carmichael was in no sense an Aristotelian; but he was a scholastic, a Reformed or Presbyterian scholastic. He did not subscribe to the punitive conception of God found in more popular formulations of Reformed or Presbyterian theology: to the doctrines that sin must be punished; that God (in the person of Christ) has accepted this punishment for some (not all) of mankind; and that our obligation to God derives from our understanding that a debt has been paid on our behalf. Carmichael considered any punitive idea of God to be an unworthy conception of the deity. He arrived at his own understanding of man’s relationship with God by reflecting upon those qualities or attributes or perfections of the deity which cannot be shared with mankind. He considered it impossible, given the imperfect conditions of human life, that beatitude or lasting happiness can ever be enjoyed in this life. But longing for such beatitude is inescapable; and this longing is most appropriately expressed in reverence for, or veneration of, God. This was the first law of nature in Carmichael’s natural jurisprudence, that every man signify his desire for lasting happiness in reverence for God. 297

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Natural jurisprudence and the science of legislation One may signify such reverence directly, in worship; or it may be signified indirectly, in respect for God’s creatures: in self-respect and respect for others. These were the second and third laws of nature: that one respect oneself and that one be sociable (Carmichael 2002, pp. 21–9, 46–53). There was no more appropriate way of signifying respect for persons, in Carmichael’s view, than to acknowledge that every individual should be considered to enjoy certain natural rights, and it was the proper vocation of the moral philosopher to specify those rights and indicate how they applied to oneself and to others in various conditions of life. Carmichael’s understanding of the laws of nature permitted him an appreciably different perspective on social life from Pufendorf, who by contrast had argued that the cultivation and preservation of sociable living obliged all members of society to obey superior powers: husbands, fathers, masters, rulers. Carmichael thought otherwise. He maintained (with Grotius and Locke and against Pufendorf) that every individual has a natural right of self-defence. He concurred with Locke’s reasoning that in the state of nature (in a world not yet occupied or appropriated, a negative community, as Pufendorf had conceived it) every man may have a right to property in things on which he has laboured (without waiting upon the agreement of others, as Pufendorf had maintained). He argued further, again on the authority of Locke, but putting the matter more unequivocally than Locke had ever done, that no man has the right to enslave another, ‘for men are not among the objects which God has allowed the human race to enjoy dominion over’. He defended the theory, common to all the early modern natural jurists, that civil or political societies have their origin in an original contract, a theory which appealed to post-revolutionary Scottish thinkers, inasmuch as it excluded (particularly in Locke’s formulation) any claim to political power on the grounds of hereditary right (Carmichael 2002, pp. 67–71, 92ff, 138–53). Scottish jurists and legislators were also concerned, in the debates surrounding the Act of Union of 1707, with limitations on the powers that would be exercised by the government of Britain. Carmichael supported this demand for limitations, but he reinforced these arguments in a manner peculiar to his own understanding of natural law (Moore and Silverthorne 1995). In every properly constituted political society, limitations on the power of rulers already exist in the manner in which the original contract is made. Anyone who would exercise power over others, whether in civil society, or in the more immediate societies constituted by households and families, can do so legitimately only by recognising the rights or the 298

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Natural rights in the Scottish Enlightenment claims of others. Such recognition generates a sense of obligation in others, a sense of obligation which endures as long as sovereigns, masters, husbands, and fathers continue to act in a spirit of reverence for the Creator and for His creatures. It will be evident that the obligatory force of natural law, in Carmichael’s formulations, depended entirely upon his natural theology, upon a moral psychology which could assume that there is in all mankind a longing for beatitude which could be directed to veneration of God. It was a moral psychology which his successors would find problematic. Their search for an adequate substitute for this theory of rights and obligation would, however, prove to be no simple matter. 4

Francis Hutcheson: civic virtue and natural rights

The dogmas of Presbyterian theology, popular and scholastic, came under fire in various parts of Reformed Europe in the early eighteenth century (Moore 1990). In Ireland, there was an initiative, emanating from Belfast, which insisted on the right of Presbyterian ministers to decline subscription to the dogmatic theology of the Church of Scotland. In Dublin, a related campaign for reform of the Scottish universities was led by Viscount Molesworth, who encouraged his Scottish friends and followers to return to the teachings of the Stoic moralists of antiquity, to a love of virtue for its own sake. It was part of the genius of Francis Hutcheson as a moral philosopher that he attempted to bring these two movements together (Moore 1990). The results of his efforts were problematic: in part because of the intrinsic difficulties involved in reconciling the languages of rights and virtues; in part because Hutcheson situated his reconciling project in at least three quite different frames of reference. In four treatises, written and published in Dublin in the 1720s, following the lead of Molesworth (and Molesworth’s friend, the third earl of Shaftesbury), Hutcheson sought to identify in human nature a faculty or capacity which approved of virtue for its own sake. He called this faculty a moral sense, arguing that, whenever one perceives a character or an action that is prompted by benevolence or by kind affection, the moral sense brings to mind a sensation or a feeling of an idea of virtue (Hutcheson 1725, 1728). There was no need to suppose, with Carmichael, that moral conduct depended upon acting in a spirit of reverence for the deity; the motive to act virtuously, Hutcheson argued, is instinctive; it is benevolence (Hutcheson 1728, Illustrations, § 6). Thus the greater or more extensive the benevolence, the more virtuous the character that is so inspired or so motivated. 299

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Natural jurisprudence and the science of legislation Hutcheson’s idea of virtue had implications for his understanding of obligation and rights. He proposed that the idea of an obligation may be derived immediately from the moral sense and its idea of virtue as benevolence without the sanction of a law of nature. For the moral sense is so constituted that one cannot fail to feel a sense of obligation to act benevolently, quite apart from any law or rule. The same moral sense recognises a right to act from the same motive; so that whenever an action or a possession or a claim is prompted by benevolence one may say that ‘any person in such circumstances has a right to do, possess or demand that thing’. It formed no part of the design of his English language writings of the 1720s to address the several questions posed by writers in the natural rights tradition. He did not neglect, however, to defend the right of private judgement, the right to serve God in the manner one believes to be most acceptable to the deity, the right insisted upon by non-subscribing clergymen of the Presbyterian Church in Ireland. He also defended the right of property derived from labour and industry; while acknowledging, paradoxically, that it is not the ‘weak motive of general benevolence’ which finds expression in this right, but rather the stronger motives of self-love and particular benevolence or family affection, friendship, and gratitude. This apparent contradiction in the moral psychology of Hutcheson’s theory of rights was one that he attempted to resolve by employing a distinction first used by the natural jurists for very different reasons (Hutcheson 1725, § 7, pp. 256, 261–2, 264). Grotius, Pufendorf, and Carmichael had distinguished between perfect rights, which are claims or actions so necessary for the preservation of sociable living that they must be enforced; and imperfect rights, which are claims or actions that may benefit others but are not necessary for social living and so need not be enforced. Hutcheson took over this terminology, but he put it to a different use. His determination to derive rights and obligations from the virtue of benevolence led him to adapt the perfect/imperfect distinction in a curious and paradoxical way. He argued that rights and obligations which are enforced do not require the exercise of much virtue; while rights and obligations which are unenforced require a greater exercise of virtue. He concluded that rights and virtues stand in an inverse relationship: perfect rights require little virtue, imperfect rights great virtue (1725, p. 268). It was a terminology that would prompt some to question Hutcheson’s idea of virtue; and others, the descriptive value of his language of rights. The tension between Hutcheson’s commitment to virtue as benevolence and his treatment of natural rights theories is most conspicuous in his English-language treatises. In the pedagogical system of morals he prepared 300

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Natural rights in the Scottish Enlightenment for students in universities and academies, his Philosophiae moralis institutio compendiara (1742), Hutcheson’s exposition of natural rights theories closely followed Carmichael’s, as Hutcheson generously acknowledged in his prefatory address. In this text, he writes of a ‘divine natural law’ which enjoins mankind that ‘God is to be worshipped with all love and veneration’, and that ‘we ought to promote as we have opportunity the common good of all’. He did not hesitate to affirm that the natural condition of mankind is a sociable condition, which he interpreted to be a condition of innocence and beneficence. He reviewed the various perfect rights of individuals, the right of property, the obligation of promises, and the several sorts of contracts. He concurred with Carmichael’s denunciation of slavery, and with his theory of the origin of government in an original contract (Hutcheson 1747, pp. 117, 119, 129, 275, 286). Some of the difficulties in reconciling rights with virtue or benevolence remained in Hutcheson’s pedagogic system. He continued to maintain that imperfect rights require greater virtue than perfect rights and that the motivation that prompts respect for perfect rights is, in part at least, self-love. These paradoxes, and others, became central features of Hutcheson’s third construction of moral and political thought in the very large work that remained unpublished in his lifetime, A System of Moral Philosophy (1755). It was characteristic of the distinctive logic of this work that the very weaknesses of human nature, of our more ardent passions and desires, and the hardships and hazards of our natural condition, form parts of a divine plan, a theodicy, in which God has made provision for the happiness of the human race (Moore 2000). In this work, the various conflicts of the passions and affections are rendered harmonious by ‘the moral faculty’; the disorders of the body politic must be reconciled by prudent legislators; divine providence will ensure that all things contribute to the happiness of the system as a whole. In this scheme, imperfect rights were now conceived as duties to the system: ‘to show an example of all kindness, courtesy and inclination to oblige and assist any of our fellows’; ‘to diffuse as far as we can the principles of virtue and piety’. These were duties, which we are obliged to perform not by law but by rights which belong to the happiness of the system of the whole human race (Hutcheson 1755, i, p. 74, ii, pp. 111–12, 231). In the successive systems of his moral philosophy, Hutcheson demonstrated various ways in which natural law theories might be reconciled with a commitment to civic virtue or benevolence. The tensions between rights and virtues are evident in Hutcheson’s emphasis on imperfect rights and obligations and his insistence upon the greater benevolence signified 301

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Natural jurisprudence and the science of legislation by imperfect rights. The same tension appears in his pedagogic system, although it is allayed in some measure by his recourse to divine moral law to provide moral inspiration for natural rights and obligations. And in his last, unpublished system of moral philosophy, imperfect rights became duties to the system as a whole. Each one of Hutcheson’s systems remains an illuminating illustration of the difficulties of bringing natural rights and civic virtue within the confines of a single system. 5 David Hume: natural rights and scepticism In A Treatise of Human Nature (1739–40), book iii, part ii, David Hume addressed the sequence of questions posed by Pufendorf, Locke, Carmichael, and Hutcheson. How should one describe the state of nature? What is the origin of rights? What are the rules that determine property? How should one account for the obligation of promises? What is the origin of government? Natural rights theories clearly provided the intellectual agenda for Hume’s treatment of justice in the Treatise (Forbes 1975, 1982; Haakonssen 1981, 1989, 1996a). But the manner in which he responded to the questions posed in the natural rights tradition reveals his scepticism concerning the answers typically provided by natural jurists. While Hume acknowledged that the rights of property and the obligations of promises provided the institutional arrangements of social life, he considered that these arrangements were artificial, not natural, in origin. The rules of justice might indeed be considered natural in the sense that they are indispensable for social life and are therefore co-existent with society. But he thought that justice, unlike other virtues, cannot be derived immediately from human passions. His reasons for thinking that the rules of justice, and the rights and obligations which follow from those rules, are artificial derive from his searching and extended reflections upon the passions and the understanding. Unlike Grotius, Pufendorf, Carmichael, and Hutcheson, but, in this respect at least, like Hobbes, Hume found no natural instinct or passion which would motivate mankind to be naturally sociable. As Hume understood human nature, there is no instinct which would prompt us to leave others in possession of things they have occupied, or do what we have promised to do. The unrestrained passions of mankind, avarice and ambition, pride in property and riches, love of fame and esteem, naturally prompt individuals to seize the possessions of others and break promises. It is only by artificial restraint and redirection of these passions that the same passions countervail themselves. This artificial restraint is provided by a convention 302

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Natural rights in the Scottish Enlightenment of abstinence from things which are connected to, or are associated with, others. Such a convention allows individuals to believe that others will be just in their behaviour, and this belief is further enlivened and reinforced by the sympathetic approval of others. The origins of justice, of rights, and of obligations, are not natural; law and legal arrangements are artificial or conventional in origin (THN, iii.ii.2). Hume’s general theory of the origin of justice would also have implications for his assessment of the most authoritative natural law theory of the right of property and the origin of government by the most noted natural jurist of the age, John Locke. Locke’s account of the right of property as having its origin in labour had been adopted by Carmichael and Hutcheson. Both philosophers had also embraced Locke’s theory that legitimate governments had their origin in the consent, express or tacit, of the people. Hume disagreed with both theories. He argued against Locke and others that the activity of labouring upon or producing a thing confers no natural right of property in that thing. The connection between a person and a thing is never a necessary connection; it is at best a contingent connection. For property, Hume liked to claim, is ‘a species of cause and effect’, and in any causal relationship, it is possible to separate the cause from the effect. In the case of property, it is always possible to separate a person from a thing, at least in the imagination (THN, ii.i.10, iii.ii.3; Hume 1882, iv, p. 151). This is why rights of property must be determined artificially, by conventions and by general rules. Hume also rejected the natural law theory that legitimate governments have their origin in the consent, express or tacit, of a people. He found no evidence in history or in the experience of the founding of governments of an original contract or the consent of the people. He argued instead that governments have their origin in conquest or usurpation; the legitimacy of a government derives from the opinion of subjects that certain individuals have a right of power by virtue of long possession or inheritance; or a right to govern by virtue of their property; and ultimately governments derive their authority from the opinion of subjects that the institution of government is useful and in their interest.5 Hume’s repudiation of natural rights theories of morals and politics was far-reaching, if not comprehensive. He did not consider mankind to be naturally sociable, rights and obligations were not natural but artificial or conventional in origin, the right of property did not have its origin in 5 ‘Of the Original Contract’, ‘Of the Origin of Government’, and ‘Of the First Principles of Government’, in Essays, Moral, Political, and Literary. See Hume 1994a.

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Natural jurisprudence and the science of legislation labouring or producing, and the authority of governments did not derive from the consent of the people. Hume’s determination to make usefulness and agreeableness to oneself and others the principles of morals must also be recognised to have been opposed to the theory of natural rights. Hume told Hutcheson that he identified his theory of justice with the opinion of Horace, who had held that utility is the mother of justice and equity (Hume 1932, i, p. 33). Grotius and Pufendorf had identified this phrase of Horace’s to have been the very position they were arguing against in their treatises on the law of nature (Moore 1994). Hume retained, to be sure, the natural rights hypothesis of the state of nature and used it to illustrate the advantages of civil society: the prosperity, force, and stability which follow from observance of rules of justice and property (THN, iii.ii.2). In the same vein, he described the condition of Europe before the recovery of Roman law as comparable with a state of nature; in the centuries that followed, the benefits of civil law became evident over time, in ecclesiastical as well as civil societies (Hume 1782, iii, pp. 300–1). Hume’s use of the state of nature hypothesis was not designed to establish a natural rights foundation for civil law; it was employed to underline the extraordinary utility of rules of justice and property. The principle of utility also permitted him to argue that what is considered useful and agreeable may vary across space and change over time, since different societies have different understandings of what is useful and agreeable (‘A Dialogue’, in Hume 1998, pp. 110–23; Moore 2002). This sceptical principle was relevant for Hume’s work as a historian; one of his more notable insights was a recognition of different epochs in the constitution of England (Hume 1782, v, app. iii, pp. 451ff). The scepticism of his moral and political thinking was not lost upon one of his oldest and most difficult friends, Henry Home. 6

Lord Kames: disquieting opinions and the law of nature

Henry Home, Lord Kames, must be considered a figure of pivotal importance in the history of natural rights in eighteenth-century Scotland (Lieberman 1983, 1989). He was not a systematic thinker in the manner of Hutcheson, Hume, or Smith. His intellectual interests were diffuse, his style of writing uneven. He did not attend a university and was educated at home by a Nonjuring minister. Kames told James Boswell late in life that he had been raised a Jacobite and an episcopalian. His appointment as a judge in the Scottish Court of Sessions was delayed by reports that his family had sympathy with the Jacobite cause (Ross 1972). Indeed it appears, from a 304

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Natural rights in the Scottish Enlightenment letter written by him in 1745, that it was the Jacobite historian, Thomas Carte, who persuaded Home to take up the study of history.6 But whatever may have been Home’s political attachments prior to the Jacobite rebellion of 1745, it is remarkable that much of his later historical work was devoted to the repudiation of Jacobite and patriarchal principles. His arguments against patriarchy and hereditary right were based upon what he took to be the law of nature. In the Introduction to his Essays upon Several Subjects concerning British Antiquities (1747) Kames advised his readers that this work was composed during ‘our late troubles’. His hope was to ‘raise a spirit among his countrymen of searching into their antiquities, . . . being seriously convinced that nothing will more contribute than this study to eradicate a set of opinions, which, by intervals have disquieted this island for a century and an half’. His essays on ‘the introduction of the feudal law into Scotland’, the ‘constitution of parliament’, ‘honour [and] dignity’, and ‘upon succession or descent’ were directed against the unnatural notions of property and government which had been fostered by the feudal law. The feudal law had been introduced in Scotland no earlier than the eleventh century, in imitation of English practice, and in order to consolidate power over land and vassals in the person of the king. At that time Scottish thanes surrendered their lands and their natural independence for feudal titles of honour. The effect of the feudal law was to withdraw property in land from commerce and attach land to families in perpetuity by the principle of primogeniture or the indefeasible hereditary right of succession of the eldest son. Nothing could be more contrary to the law of nature: ‘For primogeniture, ’tis certain, is not a right of the law of nature, but a consequence only of the feudal law. Hence it is a principle embraced by the gravest writers, that all mankind are born free and independent of one another’ (Kames 1747, p. 193). The unnatural condition of property and government under the feudal law could not long persist; industry, labour, and the natural demand for liberty led to the restoration of commerce in land and independence from feudal lords. It remained only to ensure that Scotland, with other nations, did not return to the feudal law. Such a retrograde step was unlikely as long as Scotsmen and others adhered to the law of nature. In an ‘Appendix touching the Hereditary and Indefeasible Right of Kings’, Kames reminded his readers that government is a trust, ‘invented for the good of mankind’; that it would be unnatural indeed for a people ‘to surrender their liberties to the 6 Bodleian Library, Oxford, MS Carte 128, fo. 267.

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Natural jurisprudence and the science of legislation arbitrary will of any man. The act would be void as inconsistent with the great law of nature salus populi, suprema lex’; that people may always judge whether a government has betrayed the trust of the people. ‘It is a fixed principle of the law of nature, that where there is no common judge to appeal to, the party injured may do himself justice’ (Kames 1747, pp. 196– 202). Kames had become a natural law theorist; even though he did not, as yet, have a theory of natural law. He set out to create such a theory in his Essays on the Principles of Morality and Natural Religion (1751), where he argued that a law of nature is an affection or feeling that is experienced in a compulsory, law-like manner. Such feelings are implanted in human nature by divine providence; hence their compelling, irresistible nature. He disagreed entirely with Hume’s theory that justice is an artificial virtue, regarding that theory as a personal idiosyncrasy of its author. ‘That justice is an artificial virtue was a favourite doctrine of his, early adopted, as to become in him a sort of natural principle’ (Kames 1779, p. 149). Kames passed over without notice Hume’s argument that it is by adhering to a conventional manner of behaviour that individuals come to believe that others will abstain from injuring them and thereby come to have an interest, a natural obligation, to observe rules of justice. Kames perceived Hume’s understanding of obligation to depend entirely upon sympathy, which was ‘by far too faint a principle to control our irregular appetites and passions’. Conceived in this way, Hume’s understanding of duty and obligation was as unsatisfactory as Hutcheson’s theory that there is a feeling of obligation to act in a benevolent manner: ‘upon this author’s system, as well as Hutcheson’s, the noted terms of duty, obligation, ought and should, are perfectly unintelligible’ (Kames 1779, p. 58). In contrast with Hutcheson and Hume, Kames held that there is a peculiar feeling of remorse that attends any breach or transgression of a duty or obligation: it was a ‘sense of merited punishment and dread of its being inflicted upon us’. This feeling or principle is the foundation of what Kames called the law or laws of nature; it was the natural law source of positive law: there is ‘not a characteristic of positive law which is not applicable in the strictest sense to these laws of nature’. The circumstance that we feel any breach of duty so painfully and acutely is evidence that justice is a natural virtue and that divine providence has implanted in mankind a sense of justice. And the sense of justice is the natural law source of the various duties of the law of nature: that one abstain from injuring others, that one keep promises, and acknowledge a natural right of property (Kames 1779, 306

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Natural rights in the Scottish Enlightenment pp. 64, 72, 103–9). All of these duties are enforced effectively by the dread of apprehended and merited punishment. In his insistence upon the universality of the feeling that transgressions of duty must be punished, that punishment is not only merited but necessary or unavoidable, Kames was restating, in his own idiom, the dogma of Reformed or Presbyterian theology that sin must be punished. He did not subscribe, however, to the Christian theological corollary of this dogma, that Christ, by His sacrifice, had made atonement for the sins of mankind. He considered the Christian doctrine of the atonement a primitive idea, and one productive of social mischief: A notion prevailed in the darker ages of the world, of a substitute in punishment, who undertakes the debt and suffers the punishment that another merits. Traces of this opinion are found in the religious ceremonies of the ancient Egyptians and other ancient nations. Among them, the conceptions of a deity were gross, and of morality no less so. (Kames 1792, p. 15)

It was a source of regret to him that the Christian doctrine of the atonement should have continued to have an influence upon conduct, for it allowed guilty men to believe that bad behaviour might be redeemed by communion with Christ: ‘Many men give punctual attendance at public worship to compound for hidden vices; many are openly charitable to compound for private oppression; and many are willing to give God good service in supporting his established church to compound for aiming at power by a factious disturbance of the state’ (Kames 1792, pp. 19–20). The Christians against whom Kames directed his natural law critique may well have included orthodox Presbyterians. Kames’s writings, together with those of Hume, had narrowly escaped censure by the General Assembly of the Church of Scotland in 1755. But his allusion to seditious disturbers of the public peace suggests that he included in this general indictment Christians who had been responsible for more recent disturbances, episcopalians, and Jacobites. It was in the course of his natural law critique of Jacobitism that Kames and others associated with him advanced the theory of a natural succession of stages of society.

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Adam Smith: the natural and sacred rights of mankind

The discovery in the 1890s and, more recently, in the 1950s, of student notes on Smith’s lectures on jurisprudence has required scholars to recognise that natural rights theories formed a significant part of his system of 307

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Natural jurisprudence and the science of legislation thought (LJA, LJB). These lectures, delivered in 1762–4 at Glasgow, belong logically and chronologically between his lectures on ethics and his lectures on ‘police’ or political economy (Stein 1979). Smith distinguished jurisprudence from ethics; the proper scope of ethics was the delineation of the virtues, and of the several sentiments which prompt us to approve of particular virtues and disapprove of the corresponding vices. It did not belong to ethics to elaborate rules for the direction of conduct consistent with the virtues; indeed it had been the mistake of casuists and scholastic moralists that they had attempted to regulate moral conduct in this manner. Only justice permitted precise determination by rulers. Hence it belonged to a discipline distinct from ethics to elaborate rules of justice, a discipline which was ‘what might properly be called natural jurisprudence’ (TMS, vii.iv.37). Smith located his lectures on jurisprudence in the natural rights tradition of Grotius, Hobbes, and Pufendorf, and the Prussian Reformed church illustrators of the work of Grotius, the father and son Heinrich and Samuel Cocceji (Haakonssen 1996a). The first five of the six volumes of student notes that comprise the 1762–3 lectures (LJA) may be seen to follow the agenda of the early modern natural rights tradition, adapted from Pufendorf’s work by Carmichael and Hutcheson. The range of topics covered in Smith’s jurisprudence included the right of property (volume i), the obligation of contracts (volume ii), the rights of members of households, including servants and slaves (volume iii), the origin and constitution of civil government (volume iv), and the rights of sovereigns and subjects (volume v).7 The sixth and final volume advanced the argument beyond justice and the enforcement of rights to consideration of policy and the production of wealth. Unlike Carmichael and Hutcheson, Smith did not think it necessary to invoke a law of nature to explain the rights to life, liberty, self-defence, and reputation: ‘the greatest part of what are called natural rights . . . need not be explained’ (LJA, p. 13). But it is also notable that, unlike Hume, for whom all rights and obligations were artificial, dependent on conventions and their utility, Smith made allowance for a wide range of natural rights: ‘in all about a dozen’, including rights to life, body, reputation, property, and jus commercii, a right to engage in commerce, ‘a right of trafficking with those who are willing to deal with him’ (LJA, p. 8). Smith’s confidence that he could account for natural rights without having recourse to a law of 7 The order of presentation of the lectures of 1763–4 (LJB) was different. See the comparative table of contents in Smith 1978, pp. 24–7.

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Natural rights in the Scottish Enlightenment nature or to utility may be explained by the circumstance that he had already lectured on the sentiments, natural and moral, that prompt men to seek and approve justice. His exposition of those sentiments and his differences with Hutcheson, Hume, Kames, and others on the subject of justice had been outlined in his lectures on ethics, revised for publication in The Theory of Moral Sentiments (1759). It was the central contention of Smith’s ethics that sympathy with the sentiments or feelings of others allows us to discover the sentiments that prompt men to observe and approve the virtues that are appropriate in different conditions of society and economic life. We sympathise in a particular way with the victim of injustice, with someone whose life, body, or reputation has been injured. We sympathise with the resentment felt by the victim, and we feel that the perpetrator of the injustice deserves or merits punishment (TMS, ii.i.2.5). The sentiment that inspires the demand for justice is very different from benevolence. The difficulty with Hutcheson’s theory that all virtue can be reduced to benevolence, public or private, general or particular, was that it could not account for other qualities of character which are also virtues. Some, like prudence, vigilance, constancy, or firmness, are prompted by self-love or a concern for self-preservation. Other virtues may be prompted by other sentiments; in the case of justice, for example, the relevant sentiment is the feeling that retaliation or retribution is appropriate; that justice, unlike other virtues, must be enforced (TMS, ii.ii.3.3). Smith rejected the language of imperfect rights; all rights, properly speaking, must be considered perfect rights, enforceable by magistrates and governments (LJA, p. 9). He also challenged ‘the account commonly given of our approbation of the punishment of injustice’, that injustice must be punished and rights enforced for the preservation of society (TMS, ii.ii.3.7). It is not a sympathetic concern for society at large that enlists the sentiment that justice be enforced, in Smith’s view; it is rather our sympathy with the sensibilities of assignable individuals who have been the victims of injustice that prompts us to approve the enforcement of justice. That justice and injustice are approved on account of their utility to society was Hume’s theory, and Smith may have had Hume in mind as he composed this part of his ethics (TMS, ii.ii.3.6). But his lectures on jurisprudence allow us to see that his argument was directed more broadly against natural rights theorists who also justified punishment on grounds of public utility. ‘That which Grotius and other writers commonly allege as the original measure of punishments, viz. the consideration of the public good, will not sufficiently account for 309

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Natural jurisprudence and the science of legislation the constitution of punishments. So far they say as public utility requires . . . we will find the case to be otherwise’ (LJA, p. 104). Smith agreed with Kames that the sense of justice or the sentiment that prompts us to approve enforcement of the rights of mankind is a sense of merited punishment and dread of its being inflicted on us. He did not concur, however, with Kames’s view that it was productive of mischief to believe that Christ had made atonement for the sins of mankind by his sacrifice and suffering. Smith’s remarks on the subject of divine justice present a striking contrast with Kames’s very sceptical reflections on this topic. Anyone, Smith wrote, who reflects upon the numberless violations of duty of which he has been guilty cannot imagine why the divine indignation should not be let loose, without restraint, upon so vile an insect, as he is sensible that he himself must appear to be . . . Some other intercession, some other sacrifice, some other atonement, must be made for him . . . before the purity of the divine justice can be reconciled to his manifold offences. The doctrines of revelation coincide, in every respect with those original anticipations of nature. (TMS, ii.ii.3.12n)

Although this passage was deleted from the sixth and final edition of The Theory of Moral Sentiments, published in 1790, the year of Smith’s death, it remains a graphic illustration of the religious aura that surrounds the sense of justice as he conceived it: ‘The actions which this virtue requires are never so properly performed as when the chief motive for performing them is a reverential and religious regard to those general rules which require them’ (TMS, iii.6.10). He would later denounce as a violation of ‘the most sacred rights of mankind’ government interference in the affairs of ‘a great people . . . employing their stock and industry in the way that they judge most advantageous to themselves’ (WN, iv.vii.b.44). The sentiments that prompt us to approve and enforce ‘the sacred rights of mankind’ are felt by people in all ages. But the manner in which those rights have been enforced in the laws and institutions of different nations have varied, depending upon the state or stage of that society. 8

Natural rights and the four stages of society

It has been a much-debated question as to how Kames, Smith, and others came to interpret the legal and political arrangements of the societies of the past as a sequence of stages: from societies of hunters, to societies of shepherds, to agricultural societies, and finally to commercial societies.8 8 Meek 1967, 1970, 1976; Pocock 1979; Stein 1980, 1988.

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Natural rights in the Scottish Enlightenment One of the lacunae that has bedevilled study of this matter in the Scottish Enlightenment is the absence of any satisfactory record of what Adam Smith may have taught in Edinburgh in the late 1740s and in Glasgow in the early 1750s. John Millar’s description of Smith’s lectures in Glasgow in 1751, and Smith’s later claim that his views had never changed, and that his opinions had been misappropriated by others, have generated the supposition that Smith arrived at the four stages theory quite independently and prior to Kames’s publication of the theory in 1758 in his Historical Law Tracts (Meek 1970, 1976). Another consideration, however, would seem to point to Kames as the Scottish jurist who brought the four stages theory to the attention of others. The first publication in the English language to make use of the four stages theory was John Dalrymple’s An Essay towards a General History of Feudal Property in Great Britain, published in 1757. Dalrymple dedicated his book to Kames and acknowledged a particular debt to papers of Kames that were ‘as yet unpublished, though they were open to me’ (1757, pp. iii–iv). He also advised the reader that his work had been ‘revised by the greatest genius of our age, President Montesquieu’; he does not tell us what revisions Montesquieu may have proposed. Dalrymple described the introduction of the feudal law in Scotland by King Malcolm III in the later eleventh century. The effect of the feudal law was its transformation of allodial land (held by the proprietor without obligation to a superior) into feudal land (held in leasehold or tenancy as a benefit conferred upon a vassal by a lord). In earlier societies there had been restrictions upon the alienation of land, but it was under the feudal law that restraints upon commerce in land were multiplied and strictly enforced (Dalrymple 1757, p. 24). In the earliest stages of society, he observed, following the sequence that Kames would elaborate in his Historical Law Tracts, in societies of hunters and fishermen, when property meant no more than possession of the catch or kill, there was little occasion for exchange of goods; exchanges would multiply in societies of herdsmen, and there would be little restraint upon alienation. It was feudal property which denied individuals their natural rights to property and its transference by consent. The feudal system was, as Kames put it, ‘a violent and unnatural system, which could not be long supported in contradiction to love of independence and property, the most steady and industrious of all human appetites’ (Kames 1792, p. 141). Kames and Dalrymple described the decline of feudalism in Scotland during the sixteenth and seventeenth centuries, as vassals purchased land for themselves, and lords disposed of their lands to their own advantage. But this natural course of human affairs had been arrested by an act of the 311

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Natural jurisprudence and the science of legislation parliament of Scotland in 1685, which permitted landowners to entail their estates, making it impossible for heirs to alienate their land in perpetuity. Dalrymple thought that, with some modification of this law, entails would disappear altogether, that ‘as in the case of many other branches of the feudal system, it will be remembered nowhere but in books of antiquities that such a species of conveyance ever existed’ (Dalrymple 1757, p. 186). Kames was less sanguine in his expectation; he thought that the British parliament must act at once to repeal the practice of entailment, that failure to act would subvert not only industry and commerce, but also that ‘liberty and independence, to which all men aspire, with respect to their possessions as well as their persons’ (Kames 1792, p. 156). The earliest published accounts of the four stages theory of society in Scotland followed directly, then, from Kames’s natural law critique of feudal property. The practical concern underlying the theory was that property in land, the third stage of society, must be brought into commerce, the fourth stage of society. The first and second stages of society were introduced to affirm that property in these earliest stages had been in moveables; the mobility of property was its natural condition. What was lacking in Kames’s emphatic assertion that land must be transferable or alienable was a clear articulation of the feeling or sentiment that prompts men to trade or transfer their property. That lacuna in Kames’s natural law theory would be supplied by Adam Smith. Smith’s point of departure in his lectures on jurisprudence was Roman law. He thought that the civil law of the Romans provided an excellent foundation for the study of other legal systems: ‘Anyone who has studied the civil law at least knows what a system of law is, what parts it consist of and how they ought to be arranged’ (Smith 1987, p. 30). He chose to begin his lectures (of 1762–3) by reviewing the rules of ownership specified in the civil law: occupation, accession, prescription, succession, tradition, and voluntary transference of goods. The right of property derived, as might be expected from his general theory of justice, from the sympathy of a spectator with the resentment of a possessor that something had been ‘wrongfully wrested out of his hands’ (LJA, p. 17). But the occasion for this resentment or sense of injustice must vary depending upon the stage or condition of society. In a society of hunters, a spectator would sympathise with another only if the animal or fish that he had caught was snatched violently from his hands. In a society of shepherds, the spectator’s sympathy would be aroused only if the animal bore some mark distinguishing it as belonging to the owner. It was in this second stage that property came to be differentiated from 312

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Natural rights in the Scottish Enlightenment mere possession; in making this distinction, Smith was again on common ground with Dalrymple and with Kames. But in his observations upon the third stage of society, the agricultural stage, Smith elaborated a critique that exceeded, if possible, the warmth of the denunciation of feudal property by his fellow jurists. It was ‘the tyranny of the feudal government and the inclination men have to extort all they can from their inferiors’ that had removed land from individual appropriation (LJA, pp. 20, 23). Even wild animals and fish, ferae naturae, which should remain in common, available to be possessed (not yet appropriated) by anyone, had become the preserve of the king and his vassals. Smith’s most bitter comments on feudal property appear under the rubric of succession in discussion of the right of primogeniture. ‘This method of succession, contrary to nature, to reason, and to justice, was occasioned by the nature of the feudal government’ (LJA, p. 49). It took some time following the introduction of the feudal system for succession on the patriarchal principle of primogeniture to be fixed by law and custom. But the effect of this principle, combined with the practice of entailing estates in perpetuity, had led to arrangements as unjust as they were impolitic. It was consistent with natural rights, founded on sympathy with the natural sentiment of piety, for a dying man to dispose of his goods to persons alive at the time and for whom he has contracted an affection. But, as Smith put it, ‘the utmost stretch of our piety’ cannot reasonably extend to persons not yet born. Furthermore, it was impolitic. This right is not only absurd in the highest degree but is also extremely prejudicial to the community, as it excludes land entirely from commerce. The interest of the state requires that lands should be as much in commerce as any other goods. This the power of making entails entirely excludes: I shall hereafter show more fully, only hinting at it now, that the right of primogeniture and the power of making entails have been the causes of the almost total bad husbandry that prevails in those countries where they are in use. (LJA, p. 70)

In his lectures on ‘police’ (in volume vi of the Lectures on Jurisprudence) and subsequently, in his great work on political economy, Smith explained how feudal estates had been broken up despite the persistence of primogeniture and entails. This had come about, not by recognition of the absurdity of those practices, or their inconsistency with ‘the sacred rights of mankind’, but by the silent and insensible operation of trade and commerce (LJA, pp. 331ff). It was the availability of commodities which the great feudal magnates could obtain without sharing them with their tenants and retainers: 313

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Natural jurisprudence and the science of legislation ‘All for ourselves, and nothing for other people, seems, in every age of the world, to have been the vile maxim of the masters of mankind; . . . and thus, for the gratification of the most childish, the meanest and most sordid of all vanities, they gradually bartered their whole power and authority’ (WN, iii.iv.10). It was not a general recognition of the jus commercii, of the right to engage in commerce, which had led to the dismantling of feudal property; it was another sentiment or disposition, the disposition to truck, barter, and exchange which prompted feudal magnates to alienate their estates for the sake of commodities of negligible worth. Smith traced the disposition to truck, barter, and exchange to the still more basic propensity to persuade others to be of our own sentiment or opinion (WN, i.ii.1ff; LJA, pp. 352, 493–4). His explanation may point to an underlying coherence in his system of thought, centred upon his lectures on belles lettres and rhetoric, which he offered concurrently with his lectures on jurisprudence (Smith 1983; LJA, p. 352; LJB, pp. 493–4). But it is of some historic significance for the history of political thought in Scotland in the late eighteenth century that Smith chose to locate his compelling analysis of the break-up of feudal societies in lectures devoted to political economy or ‘police’, and not in the lectures concerned with natural rights. This decision must be considered to have been one of the factors that contributed to the displacement of natural rights theories by the science of political economy in the nineteenth century. 9

Dugald Stewart and the demise of the natural rights tradition

Adam Smith, Thomas Reid, and John Millar all chose not to publish their lectures on natural jurisprudence. All three made extensive use of the natural rights agenda, however, in their lectures on moral philosophy and civil law at Glasgow (Cairns 1995; Haakonssen 1986–7; Reid 1990). Adam Ferguson’s lectures on moral philosophy at Edinburgh (1764–84), published some years after his retirement from teaching, included extended reflections on jurisprudence or compulsory law; his better known work on the history of civil society appears to exhibit (unlike the historical theories of Kames and Smith) no traces of dependence upon natural rights theories (Ferguson 1792, 1966, 1995). It was Ferguson’s successor, Dugald Stewart, professor of moral philosophy at Edinburgh (1785–1810) whose teaching and writing presented an explicit repudiation of natural rights theories (Collini et al. 1983; Haakonssen 1996a). Stewart provided a variety of reasons for believing that natural jurisprudence should no longer be employed in the instruction of students in moral and political philosophy. His reasons were set out in his 314

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Natural rights in the Scottish Enlightenment influential lectures on the active and moral powers, in his lectures on political economy, and in his Dissertation: Exhibiting the Progress of Metaphysical, Ethical and Political Philosophy since the Revival of Letters in Europe (1814). Stewart’s case against the natural rights tradition may be recapitulated under four sets of considerations. He maintained, first, that many of the duties of active life are immediately obligatory (Stewart 1854–60, i, p. 172, vii, p. 231). Justice is such a duty. The obligation to be just follows immediately from the promptings of conscience. There was no need therefore to specify the several duties of men and citizens in elaborate treatises, such as those of Grotius and Pufendorf. Moreover, commentaries on those treatises had become exercises in sterile scholasticism. Moral and political philosophers would do better to urge their readers and listeners to cultivate a sense of duty. Second, natural jurists had attached undue importance to the rules of Roman law. They had made insufficient allowance for historical change and for the diversity of legal institutions. This might seem a curious criticism to direct against the writings of Kames and Smith. But Stewart does not seem to have appreciated the extent to which Kames and Smith made natural rights theories the point of departure for their writing and teaching. Indeed, Stewart conjectured that when Smith wrote in The Wealth of Nations that universities often provide a sanctuary for exploded systems of thought, he had in mind systems of natural jurisprudence (Stewart 1854–60, i, pp. 178n, 188). Third, it is evident from Stewart’s lectures on government that he was alarmed by the natural rights theory of Locke and the manner in which Locke’s writings had been read in America, France, and England, by the friends of the Revolution in France. He deplored ‘the mistaken notions concerning political liberty which have been so widely disseminated in Europe by the writings of Mr Locke’ (Stewart 1854–60, viii, p. 23). The great fallacy which Locke’s writings encouraged was the idea that the people are capable of forming correct judgements concerning their rights and the policies of governments that would be conducive to their happiness. ‘I do not think that in the present state of the world democratic constitutions in any form which it is possible to give them are favourable to the establishment of those systematic and enlightened principles of political economy which are subservient to the progressive happiness and improvement of mankind’ (Stewart 1854–60, ix, p. 376). Fourth, in Stewart’s view, political economy should not be restricted to the study of wealth and population. Political economy should be extended 315

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Natural jurisprudence and the science of legislation to include ‘all those speculations which have for their object the happiness and improvement of political society’. It should provide ‘the standard by which the wisdom and expediency of every institution is to be established’ (Stewart 1854–60, viii, p. 10). This chapter has traced the manner in which natural rights theories were introduced to the moral philosophy curriculum in Scotland in the 1690s, by Gershom Carmichael and others; how attempts were made to reconcile natural rights and theories of civic virtue in the second quarter of the eighteenth century, principally by Francis Hutcheson; how natural rights were subjected to sceptical scrutiny in the moral philosophy of David Hume; how an antithesis to Jacobitism was supplied by an understanding of the law of nature in the work of Lord Kames; how Adam Smith extended his theory of sympathy and the moral sentiments to comprehend the natural and sacred rights of mankind; how the juridical theories of Kames, Smith, and others gave rise to the four stages theory of society; and, lastly, how the natural rights tradition was repudiated and replaced by common-sense ethics and political economy in the work of Dugald Stewart. In the course of his review of reasons for dismissing natural rights theories, Stewart reminded his readers that natural jurisprudence was nonetheless ‘a science which, for more than a hundred years constituted the whole philosophy, both ethical and political, of the largest portion of civilized Europe’ (Stewart 1854–60, i, p. 193). As our understanding of natural rights theories advances, and we continue to learn more about how those theories were adapted to elucidate issues of moral and political life, we may be inclined to conclude that Stewart’s epitaph for natural jurisprudence was somewhat premature.

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11 The mixed constitution and the common law dav i d l i e b e rman

Accounts of England’s constitution,1 even in the more systematic treatments of the middle decades of the eighteenth century, followed the common early modern pattern in which political theory often comprised an uneven amalgam of classical maxims of government, narrow partisan polemics, antiquarian learning, historical researches, and technical legal doctrine. Nonetheless, ‘the constitution of England’, so constructed, enjoyed an extensive influence on liberal political philosophy and Western statecraft well beyond its place of origin and the particular circumstances of its first articulation. ‘The eye of curiosity seems now to be universally turned’ to this ‘model of perfection’, explained Jean Louis Delolme in the 1770s (Delolme 1834, p. 1). What was to be discovered in this model were the general principles of political freedom. ‘Tis the Britannic Constitution that gives this kingdom a lustre above other nations’, extolled Roger Acherley a half-century earlier, ‘as it secures to Britons, their private property, freedom and liberty, by such walls of defence as are not to be found in any other parts of the universe’ (Acherley 1727, p. vi). The organising principle for much of the eighteenth-century celebration of the English constitution was the commonplace idea that structures of government could preserve political freedom only where they frustrated the abuse of political power. The extent to which the English enjoyed unique levels of political freedom was the result of a constitutional order which effectively prevented arbitrary or tyrannical acts of power. The achievement of this kind of political system, in turn, depended upon the existence and 1 The 1707 Act of Union created the single political entity of Great Britain from the previous separate kingdoms of England and Scotland, leaving a legacy of cumbersome terminology to describe what hitherto was called the ‘English constitution’. After 1707, the basics of the constitutional structure were now British, not English. The law and the church, however, remained separate. Contemporary usage varied among ‘English constitution’, ‘British constitution’, and ‘Britannic constitution’. For surveys of eighteenth-century constitutional developments, see Carter 1969 and Langford 1991, pp. 677–725; more detailed treatments are provided by Thomson 1938 and Williams 1960. The themes of the present chapter are explored in earlier contexts in ch. 2 above.

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Natural jurisprudence and the science of legislation co-ordination of several distinct kinds of institutions and governmental procedures. Theorists of the English constitution differed over which of these institutions contributed most critically to the maintenance of political freedom, and disagreed sharply over which political forces and developments posed the most toxic threats to liberty’s well-being. But there was a common supposition, challenged by only a minority of theorists, that public liberty was best served by institutional complexity. The English political system contained a dense patchwork of new and older legal and corporate structures, whose contemporary functions often differed significantly from those they originally performed. The first task for eighteenth-century constitutional analysis was the correct identification of the nature of this complex political order.

1

The mixed constitution

No characterisation of England’s constitution was more pervasive than the claim that the kingdom comprised a mixed form of government, combining elements of rule by one, the few, and the many. The formula recalled the traditional meaning of constitution to refer to the basic composition or ordering of both political and natural bodies; and, no less conventionally, it centred the state’s identity on the organisation of its sovereign legislature. The ‘British constitution’, William Blackstone explained in his renowned Commentaries on the Laws of England (1765–9), entrusted the ‘legislature of the kingdom . . . to three distinct powers’: the king (‘a single person’), the Lords (‘an aristocratical assembly’), and the Commons (‘a kind of democracy’); which, by operating jointly, escaped ‘the inconveniences of either absolute monarchy, aristocracy, or democracy’, while uniting ‘so well and so happily’ the benefits of each pure form (Blackstone 1979, i, pp. 50–2). Most importantly – the ‘true excellence’ of this constitutional form – each component part provided a potential ‘check’ to the abuse of power committed by any other component part, which in turn secured a political order best equipped to sustain public liberty: Like three distinct powers in mechanics, [king, Lords, and Commons] jointly impel the machine of government in a direction different from what either, acting by themselves, would have done; but at the same time in a direction partaking of each, and formed out of all; a direction which constitutes the true line of the liberty and happiness of the community (Blackstone 1979, i, p. 151).

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The mixed constitution and the common law The theory of England’s mixed government, centred on the tripartite legislature of king-in-parliament, first attained prominence in Charles I’s Answer to the Nineteen Propositions of 1642 (Weston 1965; Weston and Greenberg 1981). Eighteenth-century commentators continued to invoke this source, particularly in their efforts to clarify the ‘limited or regulated’ character of monarchy in this constitutional system (Mackworth 1701, pp. 2, 9). As in the case of the Answer to the Nineteen Propositions, their favoured presentation clearly echoed classical and Renaissance motifs concerning the superiority and durability of the ‘mixed’ political form. But in one crucial respect they distinguished their accounts from earlier formulations. Formerly the appeal to England’s mixed government competed with other, more absolutist accounts of English kingship; now it enjoyed constitutional orthodoxy. ‘The constitution of England had been seen in two very different lights for almost a century before the Revolution’, Viscount Bolingbroke observed in 1733; but now ‘our constitution is no longer a mystery’. ‘It is by this mixture of monarchical, aristocratical, and democratical power, blended together in one system’, he explained, ‘that our free constitution of government hath been preserved’ (Bolingbroke 1997b, pp. 77–8, 125–6). The Glorious Revolution of 1688 was routinely credited, as by Bolingbroke, with this definitive clarification and vindication of the political order. To invoke 1688 and the mixed constitution was thus to distinguish plainly the character of kingship in Britain from the very different absolutist regimes which oppressed the subjects of Continental monarchies and which had, in earlier eras, threatened England’s liberties too. One measure of the security furnished by the Glorious Revolution was the near complacency midcentury commentators displayed in treating once fiercely contested issues concerning the nature and authority of England’s monarch and parliament (Pocock 1987; Weston 1991). Hume in his History of England (1754–62) acknowledged that it ‘was once disputed . . . with great acrimony’ whether the House of Commons formed a constituent part of the original parliament, but that the question ‘by general consent’ had been settled against the claims of the Commons (Hume 1983–5, i, p. 467). Blackstone in the Commentaries noted the same controversy ‘among our learned antiquarians’, but dismissed its relevance to current political arrangements. He was sure that ‘whatever doubts might be formerly raised by weak and scrupulous minds’ concerning ‘the existence’ of an ‘original contract’ between subjects and sovereign, such qualms ‘must now entirely cease; especially with regard 319

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Natural jurisprudence and the science of legislation to every prince who has reigned since 1688’ (Blackstone 1979, i, pp. 145, 226). Such appeals to the consensus and stability which followed in the wake of the Glorious Revolution were, of course, a matter of tendentious exaggeration. Indeed, the most robust claims for constitutional certainty appeared in precisely those settings – such as Bolingbroke’s writings – in which the legacy of 1688 underwent partisan dispute. The major enactments of the Revolution era – the 1689 Bill of Rights and Act of Toleration, the 1694 Triennial Act, the 1701 Act of Settlement – were all documents of political compromise and even purposeful ambiguity, which readily allowed for rival understandings of their constitutional meaning, novelty, or conservatism. As a recent generation of historians has shown, whatever the successes of the Revolution settlement and the Hanoverian succession, this political achievement did not lead to the silencing or eradication of the antagonistic doctrines of non-resistance and hereditary kingship, Jacobite loyalism, royal supremacy, or High Anglican ecclesiology (Clark 1985; Gunn 1983, pp. 120–93; Kenyon 1977). Where, however, the legacy of 1688 seemed most emphatic was in its repudiation of the pretensions of Stuart absolutism, and the supporting doctrines of non-resistance and divine right kingship. ‘The principal duty of the king’, Blackstone explained, ‘is to govern his people according to law’ (Blackstone 1979, i, p. 226). Accordingly, the Revolution parliament had moved to regulate and restrain by statute just those practices of royal prerogative (such as the ‘suspending’ and ‘dispensing’ power) through which James II violated ‘the laws and liberties’ of the kingdom, threatened ‘the Protestant religion’, and undermined the constitutional order by governing ‘without consent of parliament’ (Blackstone 1979, iv, pp. 433–4; Williams 1960, pp. 26–7). Whereas James II had sworn a coronation oath to keep ‘the ancient customs of the realm’, William and Mary swore more precisely to govern ‘according to the statutes in parliament agreed on, and the laws and customs of the same’ (Williams 1960, p. 37). The ‘continual struggle’ of the first four Stuart reigns between ‘the crown and the people’ and between ‘privilege and prerogative’, Hume explained in the final chapter of his History, had been settled ‘in favour of liberty’. ‘The powers of the royal prerogative were more narrowly circumscribed and more exactly defined’, and the ‘great precedent of deposing one king and establishing a new family . . . put the nature of the English constitution beyond all controversy’ (Hume 1983–5, vi, pp. 530–1). 320

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The mixed constitution and the common law 2

Parliamentary sovereignty

If the theory of the mixed constitution thus clarified the limited nature of monarchic power in England, it proved less decisive in settling the extent of parliament’s own institutional capacity. Eighteenth-century statements of parliamentary authority often retained the traditional formulation of parliament’s powers in terms of its historical responsibilities as legislature, high court (magna curia), and place of counsel (commune concilium regni) (Atkyns 1734, pp. 69–70). But in the routinisation of parliamentary government in the decades following the Glorious Revolution, parliament’s specifically legislative function, including its annual enactments governing taxation and finance, came to dwarf its other roles (Langford 1991, pp. 139–206; Thomas 1971, pp. 45–88). By this time it had become commonplace to analyse parliamentary power more abstractly in terms of a general theory of sovereignty (Dickinson 1977, pp. 121–42; Lieberman 1989, pp. 31–40, 49– 55). Blackstone, whose treatment in the Commentaries supplied the battleground for several important subsequent discussions, approached the topic through a brief summary of the nature of civil society and political obligation, drawn from the standard materials of natural jurisprudence. Political authority was created through a voluntary transfer of natural right; the aims of such political association were to secure individual liberty and the collective good; and, to achieve such purposes, every political society required ‘a supreme, irresistible, absolute, uncontrolled authority in which . . . the rights of sovereignty reside’ (Blackstone 1979, i, p. 49). The distinguishing mark of ‘sovereign power’ was ‘the making of laws’ (i, p. 49), which power, in Britain, was exercised by the king-in-parliament: It hath sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime, or criminal; this being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms. (i, p. 156)

This, moreover, was a not a claim of pure conceptual abstraction. Parliament had confirmed its sovereign power by regulating ‘the succession to the throne’ (‘as was done in the reigns of Henry VII and William III’); by altering ‘the established religion of the land’ (‘as was done . . . in the reigns of Henry VIII and his three children’); and by changing ‘even the constitution 321

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Natural jurisprudence and the science of legislation of the kingdom and of parliaments themselves’ (‘as was done by the Act of Union and the several statutes for triennial and septennial elections’). ‘Some have not scrupled to call its power . . . the omnipotence of parliament’, Blackstone reported (i, p. 156). As the critics of this type of formulation argued, such legislative ‘omnipotence’ seemed to threaten the very fabric of liberty the English constitution was celebrated as protecting. The kingdom had simply defeated royal tyranny by enshrining parliamentary absolutism (Gunn 1983, pp. 7–42; Hamburger 1994). In its most extreme articulations – as in the case mounted by Thomas Paine in the Rights of Man (1791–2) – the criticism led to the dramatic conclusion that England, in fact, had no constitution: ‘merely a form of government without a constitution’ (Paine 1989, p. 131). A parliamentary supremacy which included the authority to revise the constitution itself entailed a reversal of a true system of constitutional government in which the constitution controlled the government, and the community itself controlled the constitution (pp. 81–3).2 Paine’s was no doubt a self-consciously iconoclastic assault on English political orthodoxies. But he navigated a much-traversed eighteenthcentury issue, which recalled and rehearsed the themes of earlier disputes concerning the nature and limits of political obligation. Notwithstanding the Commentaries’ imposing itemisation of past parliamentary enactments that altered the basic structures of church and state, there were many who felt that the bald claim of parliament’s ‘uncontrollable’ authority seriously distorted the nature of legislative power. One important line of speculation, dominated by jurists and university moralists, sought a more careful and discriminating treatment of the nature of sovereignty than that afforded by the Blackstonean language of ‘absolute despotic power’. There was the need to distinguish ‘sovereign power’ and ‘supreme power’, and to differentiate the domestic from the external (or international) face of sovereignty (Rutherforth 1822, pp. 282–5). Similar was the injunction ‘always carefully’ to ‘distinguish juridical from moral power’ in the understanding of parliament’s ‘supreme jurisdiction’ (Chambers 1986, i, p. 140). And there was the insistence that the frequently ‘indefinite’ extent of sovereign authority in many states should not be confused, as by Blackstone, with the idea that sovereignty was therefore ‘infinite’ (Bentham 1988, p. 97; Sedgwick 1800, p. 126). 2 Paine joined Blackstone in viewing the 1716 Septennial Act, which extended the maximum duration of parliaments to seven years, as the definitive modern example of parliament’s ability to alter the constitution (Paine 1989, p. 83). The controversial statute was standardly given this constitutional significance by both defenders and critics of the Hanoverian political order.

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The mixed constitution and the common law In addition to the attempted clarification of the concept of sovereignty was a corresponding effort to elucidate the term ‘constitution’ more clearly. Blackstone, as was conventional, identified the constitution with the organisation of the legislature. As William Paley later put it, ‘A government receives its denomination from the form of the legislature; which form is likewise what we commonly mean by the constitution of a country’ (Paley 1838, iii, p. 253). On this understanding, the constitution existed so long as the tripartite structure of king-in-parliament survived as sovereign; and any enactment issued by this legislative sovereign enjoyed legal validity (Blackstone 1979, i, pp. 51–2). But while the legislature furnished the core element of the English constitution, few commentators – Blackstone included – treated this structural form as exhausting the kingdom’s system of constitutional norms and practices. In this manner, Bolingbroke maintained that ‘by constitution we mean, whenever we speak with propriety and exactness, that assemblage of laws, institutions, and customs . . . that compose the general system, according to which the community hath agreed to be governed’ (Bolingbroke 1997b, p. 88). On the basis of this more dense definition of the constitution, it was easy to identify a situation in which parliament’s legislative product violated constitutional principles (Burns 1962). Paley more cautiously and hesitantly conceded that, although a parliamentary enactment ‘in the strict and proper acceptation of the term’ could not be ‘unconstitutional’, ‘in a lower sense it may, viz. when it militates with the spirit, contradicts the analogy, or defeats the provision of other laws, made to regulate the form of government’ (Paley 1838, iii, p. 261). Most weighty and controversial, however, was the characterisation of the constitutional resources available for dealing with an abuse or violation of the constitutional order. Blackstone, in setting out the case for parliament’s ‘sovereign and uncontrollable authority’, acknowledged the arguments of ‘Mr Locke and other theoretical writers’ that ‘there remains still inherent in the people a supreme power to remove or alter the legislative’ when it violated ‘the trust reposed in [it]’ (Blackstone 1979, i, p. 157). Later, in treating the likely response of the community to severe ‘unconstitutional oppressions’, he noted that ‘whenever necessity and the safety of the whole shall require it’, future generations would mobilise ‘those inherent (though latent) powers of society, which no climate, no time, no constitution, no contract, can ever destroy or diminish’ (i, p. 238). But, throughout the Commentaries, Blackstone endeavoured to blunt any radical implications of his own appeal to natural rights and natural equality (Lieberman 1989, pp. 52–5). In the hypothetical case of morally legitimate political resistance, he insisted that 323

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Natural jurisprudence and the science of legislation this must involve an extra-legal exercise of individual moral capacity ‘necessarily . . . out of the reach of any stated rule or express legal provision’: ‘No human laws will . . . suppose a case, which at once must destroy all law . . . nor will they make provision for so desperate an event, as must render all legal provisions ineffectual. So long therefore as the English constitution lasts . . . the power of parliament is absolute and without control’ (Blackstone 1979, i, pp. 156–7). It was this Blackstonean insistence that the constitution did not and could not specify in law the rights of popular sovereignty upon which it was ultimately based that more radical theorists of political liberty challenged most vehemently. ‘Judge Blackstone’, James Burgh charged in his Political Disquisitions (1774–5), ‘seems to forget that the safety of the people limits all free governments’. ‘The truth is’, he had ‘placed the sovereignty wrong, viz. in the government; whereas it should have been in the people’ (Burgh 1774– 5, i, p. 226, iii, p. 278). In 1776, Richard Price, in his avowedly Lockean defence of civil liberty, dismissed as ‘absurd’ the doctrine ‘which some have taught’ concerning ‘the omnipotence of parliaments’. All government was ‘in the very nature of it, a trust’; and legislators exercised a ‘subordinate and limited’ authority according to the specific fiduciary powers the community had delegated to them. ‘If they contradict this trust, they betray their constituents and dissolve themselves’ (Price 1991, p. 28; Sheridan 1779; Wilson 1967, ii, p. 23). 3

The balanced constitution

The classification of the English government as a mixed constitution and the debate over parliamentary sovereignty tended to focus on somewhat narrow, though fundamental, questions concerning the structure and extent of public power. Analysis of the English constitution rarely confined itself to these questions alone, and a more expansive treatment of constitutional arrangements proved especially critical to the theory of English liberty. Such explorations ranged widely and often repetitively over a varied stock of preoccupations, but two broad themes enjoyed particular prominence and influence. One of these concerned the relationship between English law and English liberty (considered in section 6 below); the other scrutinised the conduct and co-ordination of the principal institutions of governance, to which I now turn in this and in the following section. The theory of mixed constitution itself supplied the framework for evaluating the conduct of government. The legislature not only mixed elements 324

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The mixed constitution and the common law of each of the three simple forms of government, but also combined these elements in such a manner ‘that all the parts form a mutual check upon each other’ so as to frustrate the abuse of power. This, in turn, meant that the mixture demanded a sufficient ‘equilibrium of power between one branch of the legislature and the rest’ in order to sustain this checking process (Blackstone 1979, i, pp. 150–1). English liberty, in the more familiar contemporary formulation, depended upon ‘the balance of the constitution’. Once the necessity of constitutional balance was affirmed, it became possible to consider the particular powers and political functions of each branch of the legislature in terms of this requirement. Humphrey Mackworth, justifying the House of Commons’s campaign to impeach several royal ministers over alleged illegalities in their conduct in foreign affairs in 1701, furnished a particularly lucid version of this kind of constitutional analysis. ‘The great rule’ of English government, he reported, was ‘to preserve the just balance of the constitution’ (Mackworth 1701, ‘To the Lords’). The practice of ministerial impeachments supplied an exemplary instance of the manner in which the constitution fulfilled this maxim. The strength of the king was promoted by the crown’s legal immunity, but his ministers and servants were held legally accountable in their public functions through the mechanism of parliamentary impeachment. The crown could not shield any favourite from impeachment, as the decision to prosecute fell entirely under the aegis of the Commons. The actual trial and conviction of those accused, however, was the exclusive judicial right of the Lords, which again could not be obstructed by either crown or Commons. Thus the constitution equipped each part of the legislature with ‘particular powers’ that served to ‘assist each against the encroachments of the other’ and to prevent ‘any one’ part from defeating ‘the right or power that is lodged in any other’ (Mackworth 1701, pp. 2, 4; cf. pp. 5–7, 18–21). The correct understanding of the practice was supplied by this general logic of distributed functions and cumulative balance; and the same logic disclosed the vital mechanism through which the ‘absolute, supreme power’ of the legislature came in its internal operations to be checked and regulated (Mackworth 1701, p. 3). The form of analysis adopted by Mackworth became a staple of eighteenth-century political debate and speculation. The particular privileges of each legislative branch – the crown’s powers of appointment, the House of Commons’s control of fiscal legislation, the judicial authority of the Lords – were routinely assessed and defended in terms of how such authority equipped that institution with sufficient power to resist encroachments from the other branches. Similarly, reform projects and parliamentary 325

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Natural jurisprudence and the science of legislation machinations would predictably be defended and denounced in terms of their likely impact on constitutional balance. Nonetheless, throughout the century, until the era of the wars against revolutionary France, one formidable issue dominated the debate over the health of the mixed and balanced constitution: the relationship between the executive power of the crown and the independence of parliament, especially the House of Commons. ‘Executive power’, according to the conventional juridical categories, denoted the task ‘of enforcing’ (as opposed to ‘creating’) the laws (Blackstone 1979, i, p. 142; Rutherforth 1822, pp. 83–5). In more common usage, the ‘executive’ referred to the potent list of ‘discretionary powers . . . vested in the monarch’, as Edmund Burke described it, ‘for the execution of the laws, or for the nomination to magistracy and office, or for conducting the affairs of peace and war, or for ordering the revenue’ (Burke 1884, i, pp. 469– 70). Among the more delicate of the kingdom’s constitutional arrangements was the placement of legislative power jointly in the hands of ‘king, lords, and commons’, and the granting of executive power to ‘the king alone’ (Blackstone 1979, i, p. 143). The expansive eighteenth-century discussion of the relationship between executive and legislative authority engaged directly with the major changes in governance that had emerged in the decades following the Glorious Revolution. These included, first, the dramatic expansion of the size, costs, and revenues of statecraft: the large military establishment supporting a bellicose foreign policy; the new apparatus of public finance and national debt; the reliance on customs and excise; and the droves of crown appointees required to staff these structures. Second was the system of parliamentary management used to secure the annual legislative renewal of this statecraft: the techniques of ministerial direction of the crown’s interests in parliament; and the extensive use of government offices, patronage, and electoral influence to garner support in the House of Commons. Students of eighteenth-century political thought are now familiar with these developments, and the terms in which they were evaluated, defended, and especially condemned.3 The critics’ case received classic exposition in the journalist denunciations of Walpole’s administration in the 1720s and 1730s through such widely disseminated vehicles as John Trenchard and Thomas Gordon’s Cato’s Letters (1720–3) and Bolingbroke’s Craftsman 3 Pocock 1975, part 3, remains the most ambitious elucidation of eighteenth-century British political argument in terms of these developments. The relevant changes in statecraft received classic interpretation in Dickson 1967 and Plumb 1967, and more recent revision in Brewer 1989, Langford 1991, and O’Gorman 1989.

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The mixed constitution and the common law (1726–36). Bolingbroke, as we have seen, fully embraced the standard formulation of England’s ‘mixed constitution’; and further celebrated this constitution as the ‘tree’ which produced ‘that delicious and wholesome fruit’ of ‘liberty’ (Bolingbroke 1997b, p. 118). Within this mixture, the ‘essentials of British liberty’ were sustained through ‘parliamentary freedom’; and throughout English history, attacks on liberty invariably took the form of campaigns to subdue parliament (pp. 101, 98). What, in turn, ultimately sustained this vital parliamentary freedom was the mechanism of parliamentary elections which enabled the community to ensure ‘the integrity of their trustees’ in the Commons. ‘As a bad king must stand in awe of an honest parliament, a corrupt House of Commons must stand in awe of an honest people’ (p. 125). In past ages, parliamentary freedom had been challenged by royal prerogative; currently, it was undermined by the more subtle, but no less malignant, forces of executive corruption. The unprecedented size of the civil and military establishments, along with the inflated revenues of the crown (which, no less menacingly, were attributable to equally unprecedented levels of public debt), supplied government with a vast network of patronage through which to transform, through ‘place’ and ‘office’, the trustees of English liberty into the pawns of executive power. At the same time, the deployment of electoral patronage and the statutory extension of the parliamentary term to seven years disabled the mechanisms of electoral accountability. Superficially, the outward form of a constitution of king, Lords, and Commons was maintained. In practice what prevailed was an anti-constitutional regime of government ‘by corruption’ that placed parliament under the ‘absolute influence of a king or his minister’ (Bolingbroke 1997b, p. 94). The understanding of the constitution offered by Bolingbroke and likeminded opponents of the Hanoverian regime thus placed the fate of English liberty squarely upon the virtue of the community (its capacity to hold parliament to its trust) and the independence of parliament (in its capacity to combat the ever-present tendency of political power to corruption, abuse, and aggrandisement). As such, the account – standardly adorned with the appropriate classical maxims and examples from Roman history – constituted a distinctly ‘republican’ and ‘commonwealth’ reading of the British constitution; or, in the more common contemporary usage, it furnished a ‘Country’ critique of Hanoverian ‘Court’ politics (Pocock 1975, pp. 467– 90). The positive ‘commonwealth’ or ‘Country’ strategy for restoring constitutional balance followed directly from its diagnosis of the current threats 327

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Natural jurisprudence and the science of legislation to British liberty. The fiscal resources and scale of government were to be reduced through the elimination of public debt. The manipulation of parliamentary deliberations by the executive was to be destroyed by barring those with government offices (‘placemen’) or contracts from the House of Commons. The independence of parliament was to be restored through a strengthening of the electoral process: ‘freedom of elections’ (the elimination of electoral patronage and expenditures in the borough constituencies) and ‘frequent elections’ (the repeal of the Septennial Act). With the adoption of these measures, the constitution would be restored, and the community rescued from the party divisions and ministerial rivalries that had infested politics since the Glorious Revolution. The response of the ‘Court Whigs’ to this indictment of British political practice was joined immediately by ministerial apologists and journalists in the 1720s and 1730s (Browning 1982; Burtt 1992; Pocock 1975, pp. 446–61). But what was to prove the most elegant and suggestive of the responses to the ‘republican’ interpretation of the constitution did not appear until 1741–2, when Hume presented the first of the several editions of his Essays, Moral and Political published in his lifetime.4 In these essays, as in the later History of England, he tendentiously adopted ‘the temper . . . of a philosopher’, who properly recognised the ‘infinitely complicated’ texture of ‘all political questions’, and taught ‘a lesson of moderation’ to replace the ‘violent animosities’ of the ‘party-zealots’ (Hume 1994a, pp. 216, 12–13). He concurred in the commonplace judgement that England’s mixed system of government produced unequalled levels of public liberty. ‘The whole history of mankind’, he reported, offered no comparable instance of a community governed ‘in a manner so free, so rational and so suitable to the dignity of human nature’ (p. 217). But, in reaching this conclusion, Hume distanced himself from many contemporary commentators by emphasising the historical novelty, institutional fragility, and considerable political risks of this distinctive form. In his response to the ‘Country’ attack on Walpolean corruption, Hume maintained that what had there been treated as pathological features of postRevolution politics instead needed to be acknowledged as the inevitable, though potentially dangerous, features of England’s complex institutional structures. The political order secured through the Glorious Revolution and Protestant succession had ended the destructive constitutional conflicts of the Stuart era. Likewise, these developments had served to blur and attenuate 4 Hume’s political theory was, of course, also to be found in his moral philosophy and ‘philosophical’ history. For broader treatment than given here see Forbes 1975, Haakonssen 1993, and Miller 1981. For other aspects of Hume see chs. 3, 5, 7, 10, and 12 in this volume.

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The mixed constitution and the common law the kingdom’s earlier political divisions between the Whig and Tory parties. But it was wrong to expect that this clarification of the constitution simply eliminated political division and partisanship. The constitution’s ‘extremely delicate’ combination of ‘republican and monarchical parts’ meant that ‘different opinions must arise’ over its proper balance, ‘even among persons of the best understanding’. On any particular issue ‘some will incline to trust larger powers to the crown’, while others would fear the ‘approaches of tyranny and despotic power’; and hence, partisan divisions had to be allowed as ‘the genuine offspring of the British government’ (Hume 1994a, pp. 40–1, 44–55). Moreover, since ‘the power of the crown’ was ‘always lodged in a single person, either king or minister’, the extent of this power would inevitably vary according to the ambition and capacity of the individual exercising it. Consequently, the constitutional structures could never ‘assign to the crown such a determinate degree of power, as will, in every hand’ serve the purposes of constitutional balance (p. 27; see also pp. 203–5). If, for Hume, political division and constitutional ambiguity formed an ‘unavoidable disadvantage’ of England’s system of ‘limited monarchy’ (p. 27), the mechanisms of constitutional balance themselves required similar reexamination and elucidation. Contrary to the conventional wisdom concerning the balance among king, Lords, and Commons, Hume maintained that the constitution in fact ‘allotted . . . to the House of Commons’ a ‘share of power . . . so great that it absolutely commands all the other parts of the government’ (p. 25). Neither the monarch’s legislative veto, nor the privileges of the Lords, was sufficient to counter the strength of the Commons. The costs of modern statecraft, coupled with the House of Commons’s settled control over the ‘right of granting money’, gave that body more than enough capacity to overwhelm the constitutional order (pp. 25–6).5 What, in fact, prevented this destruction of the mixed constitution were precisely those frequently condemned patronage resources of the crown which created a block of support in the House of Commons sufficient to maintain the crown’s authority (p. 26). In this manner, Hume concluded, executive influence was revealed as the true saviour of the constitutional order: ‘We may . . . give to this influence what name we please; we may call it by the invidious appellations of corruption and dependence; but some degree

5 For Hume, the power of the Commons was the political face of the social transformations of the Tudor and Stuart eras, which he identified with commerce and manufactures. These changes had undermined the power of the peerage and the feudal order. See Hume 1983–5, ii, pp. 522–5, and 1994a, pp. 111–12.

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Natural jurisprudence and the science of legislation and some kind of it are inseparable from the very nature of the constitution, and necessary to the preservation of our mixed government’ (p. 26). In the decades which followed, constitutional argument and programmes of reform routinely adhered to the script set out in these polemics of the early Hanoverian period. Apologists for the political order emphasised the manner in which ‘executive influence’ had simply replaced ‘prerogative’ as the main source of royal power in the scheme of constitutional balance (Blackstone 1979, i, pp. 322–5). But even the most complacent observers recognised that the scale of British government and its military establishment gave the executive, in Blackstone’s phrase, ‘an influence most amazingly extensive’ (p. 324). Accordingly, the conduct of executive government and its impact on parliamentary independence necessarily remained a leading preoccupation (Burke 1884, i, pp. 444–50; Hume 1994a, pp. 26–7). This was an imperative that framed both moderate and radical projects of constitutional purification (Cannon 1973, pp. 47–97; Langford 1989, pp. 710–19). Radical schemes of constitutional reform, developed in the contexts of the Wilkesite protests of the 1760s and the American resistance of the following decade, offered increasingly democratic versions of the ‘Country’ programme to block executive corruption by strengthening the mechanism of parliamentary election. The ‘subversion of the constitution’ at the hands of ‘parliamentary corruption’ received encyclopedic denunciation through the vehicle of Burgh’s three-volume Political Disquisitions. The ‘British government’, he reported, had long ceased functioning as a mixed constitution, and now was ‘really a juntocracy . . . or government by a minister and his crew’ (Burgh 1774–5, i, pp. 49–50; see iii, p. 267). The recovery of parliamentary independence required, as John Cartwright expressed the radical prescription, ‘making our parliament annual and our representation equal’ (Cartwright 1776, p. 15).6 Conservative critics of this approach to parliamentary reform, such as Josiah Tucker and Edmund Burke, returned to an analysis furnished by Hume, arguing that such schemes actually threatened to unbalance the constitution by overstrengthening its republican features, thereby exposing the kingdom to all the vices and instabilities correctly associated with pure democracy (Burke 1884, vii, pp. 71–87; Hume 1994a, pp. 31–2; Tucker 1781, pp. 257–74). But even the alternative, self-consciously moderated schemes of political reform adhered to much the same logic of constitutional 6 Burgh also supported the call for an extra-parliamentary ‘Grand National Association’ to lead the mobilisation for constitutional reform: see Burgh 1774–5, iii, pp. 428–35. This movement is detailed in Black 1963 and Christie 1962.

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The mixed constitution and the common law balance. When in 1780 Burke presented to the House of Commons the Whig version of the popularly agitated plan for ‘economical reform’, he duly stressed that ‘economy’ itself merely constituted a ‘secondary’ goal of this plan for administrative retrenchment. Its primary purpose was to reduce ‘the direct and visible influence’ of the executive, and to extinguish ‘secret corruption almost to the possibility of its existence’ (Burke 1884, ii, p. 356).7 The debates over corruption, influence, and constitutional balance formed the common coin of political argument in eighteenth-century Britain, and frequently involved little better than repetitive and even formulaic rehearsals of stock themes. Yet this material came to attain an intellectual impact far more substantial than the oftentimes narrowly partisan contexts of its rehearsal. In focusing so much attention on the relationship between executive power, on the one hand, and the integrity of the House of Commons, on the other, the debate tended to shift attention away from the conventional image of the mixed constitution and its combination of monarchic, aristocratic, and democratic elements.8 This, as was perceived with special force by the author of the period’s single most famous treatment of the English constitution, made possible an alternative explication of the nature of England’s complex political structures. Not the least of Montesquieu’s remarkable achievements in this account was to convince a large, cosmopolitan audience that the design of England’s government, so described, revealed the foundational principles for the general theory of constitutional freedom. 4

The separation of powers

Montesquieu’s renowned chapter ‘On the Constitution of England’ formed the centrepiece of the first of two books (xi and xii) of The Spirit of the Laws devoted to ‘the laws that form political liberty’. The first of these considered liberty ‘in its relation with the constitution’; a form of liberty, Montesquieu began by arguing, that was commonly wrongly identified with democratic self-government. Instead, political liberty was uniquely a property of those ‘moderate governments’ which made possible such a stable structure of law that their subjects were enabled ‘to do everything the laws permit’. Such 7 On ‘economic reform’ and its connection with parliamentary reform, see Cannon 1973, pp. 75–84; Christie 1956; Harling 1996. 8 One by-product of this emphasis (ironic, in light of the actual political power of the peerage) was the marginalisation of the House of Lords in constitutional discussions. William Paley, for example, found it necessary to explain the ‘little notice [that] has been taken of the House of Lords’ in his own survey (Paley 1838, iii, p. 272).

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Natural jurisprudence and the science of legislation liberty could survive only under a government where ‘power is not abused’; and the key mechanism for preventing the abuse of power, Montesquieu famously claimed, was a political form in which ‘power’ checked ‘power by the arrangement of things’ (SL, xi.1–4). Having thus clarified in the abstract the nature of constitutional freedom, the French jurist invoked England as the sole ‘nation of the world’ whose constitution had ‘political liberty for its direct purpose’. ‘We are going to examine the principles on which this nation founds political liberty’, he explained. ‘If these principles are good, liberty will appear there as in a mirror’ (SL, xi.6, p. 156).9 The detailed analysis of England’s constitution (xi.6) centred on an account of how the ‘three sorts of powers’ exercised in every state – legislative power, executive power, and ‘the power of judging’ – were, in England, distributed into separate institutional hands. It was in terms of the complex distribution and co-ordination of these three powers that Montesquieu identified those features of England’s political system designed to frustrate the principal forms of political and legal tyranny.10 In the case of the ‘power of judging’, the separation meant that those responsible for creating law and for mobilising the resources of the state lacked the power of punishing particular ‘crimes’ or settling ‘legal disputes between individuals’. English justice – in an oblique reference to common law juries and the system of semiannual judicial assize circuits – placed the ‘power of judging’ in the hands of temporary tribunals ‘drawn from the body of the people’ (pp. 157–9). The ‘power of judging’ was acknowledged to be the weakest of the three elements of state power (p. 160), which meant that the distribution and operation of legislative and executive powers required the most attention. Here Montesquieu’s discussion reworked and revised topics already established in native debates over the balance of the constitution (Shackleton 1949). The division of parliament into two houses served the interests of political stability by giving those ‘distinguished by birth, wealth, or honours’ their own assembly serving their ‘separate views and interests’. But the same bicameral structure also created an internal restraint on legislative power by requiring the agreement of two separate bodies in the making of law (SL, xi, 6, pp. 160, 164). The monopolisation of executive authority by a 9 The place of Montesquieu’s discussion of England in his more general theory is explored in Baker 1990, pp. 173–85; Mason 1990; and Richter 1977, pp. 84–97. See also two substantial histories of the theory of separation of powers: Gwyn 1965 and Vile 1967. 10 Montesquieu’s discussion in xi.6 concerned the design of England’s constitution and not whether in practice this design was realised: see SL, xi, 6, p. 166.

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The mixed constitution and the common law hereditary monarch rendered explicit the institutional division between legislative and executive powers. The monarch’s ‘faculty of vetoing’ proposed legislation meant that ‘the executive power’ could ‘check the enterprises of the legislative body’ when these tended to the aggrandisement of power (p. 162). The ‘legislative power’, in turn, could prevent executive abuse through its control over ‘the raising of public funds’ and through its power to accuse and impeach those officials who violated the law ‘in matters of public business’ (pp. 163, 164). The overall arrangement of ‘these three powers’, Montesquieu observed, ‘forced’ them ‘to move in concert’; so that whenever public power was deployed, these institutional checks against the abuse of power were automatically mobilised (p. 164). The reception of Montesquieu’s analysis in Anglophone political thought proved rapid and, most often, enthusiastic. ‘The celebrated Montesquieu’, James Madison reported, was the ‘oracle’ whom ‘enlightened patrons of liberty’ invariably ‘consulted and cited’ in support of ‘the political maxim’ that ‘the legislative, executive, and judicial departments ought to be separate and distinct’ (Hamilton et al. 1981, pp. 138–9). There was, of course, much in Montesquieu’s assessment to flatter his English readers, and it is striking how much less attention was directed to those other sections of The Spirit of the Laws which supplied far more critical and pessimistic assessments of England’s political system (SL, xix.27, xx.7; Baker 1990, pp. 173–85). But the chief importance of the discussion was due less to its praise for England than to its presentation of England’s constitution as a basic institutional model which provided the correct framework and standard for understanding the logic of constitutional liberty more generally. In contrast with native discussions, Montesquieu’s treatment of English structures and practices proceeded at a highly abstract level (even such basic nomenclature as ‘House of Lords’ and ‘House of Commons’ was absent), replete with comparisons to political arrangements in the states of the ancient and modern world. This comparative dimension was thereafter greatly extended in the remainder of book xi, which continued with three chapters on constitutional liberty in the case of modern monarchy (7–9) and ten chapters on ancient governments (10–19). Ironically, Montesquieu’s overall account of political liberty in book xi devoted more space to the case of ancient Rome (12–19) than it did to contemporary England (6). Montesquieu’s more general and comparative concerns help explain what proved a particularly influential feature of his analysis: the prominence and importance ascribed to ‘the power of judging’. The institutional power and political impacts of courts and legal practices had long been recognised in the 333

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Natural jurisprudence and the science of legislation political theory of European kingdoms. But the formal analysis of political power, particularly by jurists, tended to remain framed by the distinction between legislative and executive power. Montesquieu’s departure from this convention received prompt notice.11 Thomas Rutherforth, in his midcentury Cambridge University lectures on Grotius, thus lamented the growing fashion to distinguish civil power into ‘three several parts, legislative, judicial, and executive’. ‘Judicial power’, he countered, was ‘plainly . . . nothing else but a branch of the executive power’ (Paine 1989, p. 139; Rutherforth 1822, p. 275). Nonetheless, this separation and elevation of ‘the power of judging’ was absolutely critical to Montesquieu’s comparative purposes. In the case of modern (Continental) monarchies, such as in France, the fact that the king left ‘the power of judging’ to ‘his subjects’ created a level of constitutional freedom in these states unknown in despotic governments, where ‘the three powers’ were ‘united in the person’ of a single prince. Furthermore, the common failure in republican states to achieve a stable institutional separation of ‘the power of judging’ helped clarify Montesquieu’s initial claim in book xi that constitutional liberty could not be equated with selfgovernment (SL, xi, 6, pp. 157–8). On the basis of this insight, Montesquieu explained the precariousness of political liberty in ancient Rome, and drew the striking, albeit reassuring, conclusion that ‘the Italian republics’ enjoyed ‘less liberty than in our monarchies’ (pp. 179–84, 157). Most British commentators eagerly embraced Montesquieu’s emphasis on ‘the power of judging’, though in a manner which often enlarged and significantly altered his own teaching. Montesquieu had focused his attention on the English jury and circuit assizes, and had consistently used the phrase la puissance de juger (and not le pouvoir judiciare) (‘the power of judging’, not ‘judicial power’) to refer to this third element of state power. His eighteenth-century English translator, Thomas Nugent, rendered the phrase as ‘judicial power’ and ‘judiciary power’, thus making easier the eventual mutation of Montesquieu’s separated la puissance de juger into an independent judicial department or branch of government. Blackstone, whose analysis closely followed Montesquieu, thus spoke more broadly of the ‘distinct and 11 The ambiguities of Montesquieu’s own text reflect some of the difficulties attending this revision. At the outset of xi.6, he distinguished ‘legislative power’ from two different forms of ‘executive power’ (‘over things depending on the right of nations’ and ‘over things depending on civil right’), before settling down to the now more familiar classification into legislative, executive, and judicial functions (SL, xi, 6, pp. 156–7). His initial formulation recalls Locke’s distinction between legislative and two kinds of (analytically differentiated) executive power: executive power and federative power: Second Treatise, ch. 12.

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The mixed constitution and the common law separate existence of the judicial power’ being ‘one main preservative of the public liberty’ (Blackstone 1979, i, p. 259). In explaining this vital – and now extended – constitutional feature, he emphasized recent legislative changes Montesquieu omitted. Formerly English judges held office ‘at the pleasure of the crown’ (durante bene placito); now they served ‘during their good behaviour’ and ‘their full salaries are absolutely secured to them during the continuance of their commissions’ (i, p. 258).12 English authors, such as Blackstone, found in Montesquieu’s treatment of judging a convenient formula for accommodating already well-rehearsed precepts concerning the importance of independent courts and impartial judicial decision-making to English liberty. The condemnation of the English crown’s earlier reliance on prerogative courts (Star Chamber, High Commission), along with the denunciation of the royal manipulation of the common law bench, formed a staple and central theme of the eighteenthcentury indictment of Stuart absolutism. Likewise, legislative enactments designed to strengthen the integrity of common law process – such as the Habeas Corpus Act (1679), the Treason Trials Act (1696), the Act of Settlement (1701) – figured no less prominently in post-Revolution accounts of the basic structures preserving public freedom (Blackstone 1979, iv, pp. 431– 3; Delolme 1834, pp. 46–8, 165–70). Still, Montesquieu’s more abstract thesis concerning the distribution of three powers stimulated an important shift in the English discussion of these familiar themes. In earlier discussions, concern for the impartial administration of justice focused on the threats posed by royal power and prerogative. Often the favoured case for establishing the independence of the judiciary from royal interference was to emphasise the courts’ proper dependence on parliamentary authority. ‘The judges’, Roger Acherley urged, ‘ought to give judgement in all cases before them without being obliged to resort to the king for advice, instructions or directions’. Instead, they should be ‘accountable in parliament’ (Acherley 1727, p. 86; Atkyns 1734, pp. 96– 7). Once Montesquieu’s distribution-of-powers thesis gained currency, it became common to celebrate a far more generalised version of judicial independence and institutional autonomy. Blackstone stressed the need for the separation of ‘judicial power’ from the ‘legislative’ no less than from ‘the executive power’ (Blackstone 1979, i, p. 259). Paley reported that ‘the first maxim of a free state’ was that ‘the legislative and judicial characters be 12 The change, introduced after the Glorious Revolution, was made statutory in the 1701 Act of Settlement. Reference to this legislation became routine in discussions of the independence of English judges.

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Natural jurisprudence and the science of legislation kept separate’, thereby dropping the earlier preoccupation with interference from the crown (Paley 1838, iii, p. 281). Finally, Burke expansively extolled independent judges ‘wholly unconnected with the political world’ (Burke 1884, ii, p. 351).13 5

Delolme versus Price

The appropriation and adjustment of Montesquieu’s ‘power of judging’ for domestic purposes was paralleled in the more general reception of his interpretation of the English constitution. His authority was standardly paraded to confirm Whiggish pieties about the exceptionalism of English liberty; and his formulation of separated ‘power’ checking ‘power’ was mobilised in partisan disputes over constitutional balance (Fletcher 1939; Vile 1967, pp. 111–21). In his own discussion, Montesquieu did not classify England’s constitution as a mixture of monarchy, aristocracy, and democracy; in book xi, he reserved this formula for the government of ancient Rome (SL, xi, 6, p. 170).14 English commentators, in contrast, frequently layered Montesquieu’s separation of powers thesis on top of the older theory of England’s mixed constitution (Adams 1998, pp. 58–61; Blackstone 1979, i, pp. 50–2, 149–51; Paley 1838, iii, pp. 265, 269–71, 281–2). The combination implied two overlapping networks of institutional arrangements, both of which functioned to frustrate the abuse of political power. Analytically, however, each thesis was quite distinct: mixed government explaining the internal composition (and resulting restraints in the operation) of sovereign legislative power; the separation of powers treating the institutional distribution of three kinds of state power, of which legislative power was but one. The blending of the two theses followed readily, given their shared concern with the manner in which complex structures and balances helped produce political liberty. Nonetheless, it was possible to use the materials assembled in The Spirit of the Laws to propose a more substantial and ambitious recasting of established constitutional pieties. Such a task was undertaken by another influential continental author, Jean Louis Delolme, whose Constitution de 13 These fulsome theories of judicial independence strained against much of the settled routines of political patronage and recruitment attending judicial appointments and promotions; see Lemmings 1993. 14 Montesquieu in ch. 6 identified all the structural features relevant to England’s ‘mixed constitution’, though he avoided the label. He regarded England as a largely anomalous political form, which explains some of his reticence in applying conventional political categories to its constitution. In v.19 England is described as ‘a nation where the republic hides under the form of monarchy’ (SL, p. 70).

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The mixed constitution and the common law l’Angleterre (1771), earned later praise as ‘the best defence of the political balance of three powers that ever was written’ (Adams 1797, i, p. 70). Even more than Montesquieu, Delolme presented a detailed comparative canvass in order to confirm the commonplace judgement that England enjoyed unrivalled levels of political freedom. Of special concern to him was the effort to vindicate the English system of government from the strictures of those modern enthusiasts of ‘the governments of ancient times’ (in particular the judgement of his fellow Genevan, Rousseau), who ‘cried up the governments of Sparta and Rome as the only fit ones for us to imitate’ (Delolme 1834, p. 209). Thus, although Delolme pursued at length the fundamental ways in which the English monarchy and nobility differed from their Continental counterparts (pp. 33–40, 323, 335–8), he explored most pointedly the contrast between England’s unique regime of modern liberty and the republican states of antiquity. In the course of this ambitious survey, reference to England as a mixed government of monarchic, aristocratic, and democratic parts appeared almost as an afterthought (p. 431). Instead, Delolme emphatically anchored his constitutional analysis in ‘the particular nature and functions’ distributed to the ‘constituent parts of the government’, which gave to English government ‘so different an appearance from that of other free states’ (p. 171). The ‘first peculiarity of the English government’ was the crown’s exclusive monopoly of ‘executive power’ (pp. 171, 335). Another ‘capital principle’ was identified in the provision ‘that the legislative power belongs to parliament alone’ (p. 49). Finally, it was the ‘singular situation of the English judges’ relative to the ‘constituent powers of the state’ which served to frustrate the abuse of both legislative and executive power, as well as to promote that ‘strict and universal impartiality’ of justice which formed yet another ‘essential difference . . . between the English government and those of other countries’ (pp. 326, 141–2, 192). Whereas previous commentators anxiously noted the delicacy and fragility of England’s constitutional balance, Delolme instead emphasised the political system’s ‘resources’, ‘equilibrium’, and overall strength (p. 171). It was precisely this ‘solidity’ and ‘peculiar stability of the governing authority’ which enabled the ‘several essential branches of English liberty to take place’ (p. 371). Delolme’s more detailed treatment explained the manner in which the constitution’s distinctive distribution of governmental functions secured English liberty from the dangers and vices that typically afflicted free governments. The political capacity of the crown rested on its exclusive command of executive power, but this was effectively restrained by the House 337

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Natural jurisprudence and the science of legislation of Commons’s control of supply. Such royal authority, denied ‘the power of imposing taxes’, was ‘like a vast body which cannot of itself accomplish its motions’ (p. 66). Conversely, the fact that executive authority was separated, and, even more, ‘exclusively vested’ in one institution, made for an extremely potent form of executive authority. The strength of English kingship, in this respect, contributed critically to ‘the remarkable liberty enjoyed by the English nation’ (p. 335). Historically, this ‘indivisible and inalienable’ executive power served to unify the Commons and Lords in common cause against the abuse of royal prerogative; currently, it proved easier to monitor and restrain than a more diffuse executive (pp. 16–17, 187–9, 244–8). More importantly, since executive power was wielded only by an hereditary monarch, even the most powerful and ambitious of private subjects was discouraged from attempting that kind of direct seizure of state power that afflicted the ancient republics. Instead, each English subject – knowing he must remain a subject – acquired a strong interest ‘really to love, defend, and promote those laws which secure liberty to the subject’ (pp. 185n; see pp. 183–8, 335). In treating legislative power, Delolme similarly emphasised the efficacy of unique structural arrangements. The organisation of parliament into Lords and Commons – largely shorn of their conventional associations with ‘aristocracy’ and ‘democracy’ and the social divisions to which these were related – served its primary constitutional function by introducing an internal restraint on the operation of legislative power. So effective was each House in blocking the aggrandisement of power by the other, Delolme maintained, that the crown rarely needed to deploy its veto power to protect the executive from legislative encroachments (pp. 190–1, 349–50). Of equally profound consequence were the unique arrangements governing the organisation and functions of the House of Commons. The people, acting through their representatives in the Commons, enjoyed a robust power of ‘the initiative in legislation’ that contrasted favourably with the less potent veto power allotted to the plebeian institutions of antiquity (p. 201; see pp. 223–8). This power, however, was restricted by being exercised ‘only through’ the community’s ‘representatives’ (p. 232). These representatives – moderate in number, placed on an easily monitored political stage, and generally selected ‘from those citizens who are most favoured by fortune’ – were equipped with both experience and incentives for resisting the ambitions and intrigues of the powerful. Hence the absence in England of that kind of lethal political volatility and demagogic manipulation of the popular will which routinely destroyed liberty in the ancient world (pp. 220–3). 338

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The mixed constitution and the common law England’s ‘representative constitution’, Delolme triumphantly concluded, had thus achieved a structural ‘remedy’ for the perversions of republican government that had eluded previous ‘popular constitution[s]’ (p. 233). In elucidating the history and operation of England’s constitution, Delolme traversed well-rehearsed matters of political structures, government functions, and themes of balances and checks. Nonetheless, his study is indicative of how, by the mid-1770s, significantly divergent accounts had developed concerning the manner in which this system of government produced its celebrated benefit, political liberty. The spectrum of interpretation can be indicated through a brief comparison of the sharply contrasting positions adopted in Delolme’s tendentious rendering of England’s separation of powers and in Richard Price’s no less substantial recasting of England’s mixed constitution in his Observations on the Nature of Civil Liberty (1776). Ultimately what divided the two theorists was a basic conflict over the nature of liberty, which by this time boasted a rich and distinguished pedigree (Pocock 1985, pp. 37–50; Skinner 1998). Price, who identified liberty in general with ‘the idea of self-government or self-direction’, identified civil freedom as the capacity of the members of a given community to govern and make laws for themselves (Price 1991, pp. 22, 23–4). Delolme (reacting here to the doctrines of Rousseau) directly repudiated this approach. ‘To concur by one’s suffrage in enacting laws’ was to enjoy ‘a share’ of ‘power’. ‘To live in a state where the laws are equal . . . and sure to be executed’ was ‘to be free’ (Delolme 1834, p. 212; Paley 1838, iii, pp. 250–2). Of greater concern here is the particular account each offered for the constitutional basis of England’s freedom. Price, associating civil freedom with popular self-government, naturally turned to the elected body of legislative representatives as the appropriate vehicle of self-government in the circumstances of a large and populous state; such an assembly fulfilled the requirements of political liberty to the extent that it ‘fairly and adequately represented’ the community it served (Price 1991, pp. 24–5). Accordingly, England’s claims for enjoying a ‘free government’ depended entirely on the representativeness and accountability of the House of Commons. When fashioning ‘the most perfect constitution of government’, Price acknowledged, excellent reasons might exist to introduce ‘useful checks in the legislature’ by adding a ‘supreme executive magistrate’ and an ‘hereditary council’ to the ‘body of representatives’ (thus creating a mixed form of government). Still, these institutional additions were, strictly speaking, irrelevant to the issue of liberty (Adams 1979, pp. 87–9; Price 1991, pp. 26–7, 43). 339

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Natural jurisprudence and the science of legislation For Delolme, as we have seen, English freedom was not chiefly a function of political power’s dependence on the community, much less the result of the people themselves immediately directing the government. Rather, the liberty England enjoyed was principally a product of separations and balances operating within the institutions of political power. Although Delolme recognised the ‘right of election’ as a basic ‘remedy’ against the abuse of parliamentary power (Delolme 1834, p. 249), his detailed treatment of the distinctive merits of England’s ‘representative’ (as opposed to ‘popular’) constitution celebrated the House of Commons as much for its capacity to restrain as to facilitate the popular will. It was entirely in keeping with this conception of the function of representatives that Delolme went on to identify the ‘democratical’ features of English government with ‘trial by jury’ and ‘liberty of the press’; instruments which respectively placed ‘judicial power’ and ‘censorial power’ directly ‘in the people’.15 These institutions, whose efficacy Delolme emphasised, rendered England ‘a more democratical state than any other’ (p. 381n; see pp. 250–69). But, the compliment additionally served neatly (if silently) to efface the democratic credentials of the House of Commons, and thereby destroy one of the major elements in the conventional depiction of England’s mixed government. 6

The common law

The accounts of England’s constitutional system considered thus far offered diverse explanations for the manner in which political structures frustrated the abuse of power; how England came emphatically to be blessed (in the frequently invoked Aristotelian formula) with a ‘government of laws, not of men’. In principle, these treatments need not have attended in detail to the content of the specific law which governed the relations among individual subjects. Eighteenth-century jurists deployed several analytical categories to distinguish the issue of political or civil liberty (depending chiefly on the form of the state) from the issue of personal liberty or personal security (depending chiefly on the private rights secured by the body of domestic law) (P. N. Miller 1994, pp. 130–6). Furthermore, ‘the law’ which governed Britain actually comprised several distinct systems of rules and legal process, 15 Delolme was unusual in placing the press and public opinion under a distinct political function, ‘censorial power’, and in treating this power on a par with other leading powers (Delolme 1834, pp. 48, 250–61). Other commentators observed the contribution of the press and public discussion to the distinctiveness of British political culture, but tended not to accommodate this within their account of the constitution (SL, xix.27, pp. 325–7; Paley 1838, iii, p. 239).

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The mixed constitution and the common law Scots law and English law forming one obvious division, but, even within England, Roman law and canon law being used in specific jurisdictions, such as the ecclesiastical courts, military courts, and courts of admiralty (Blackstone 1979, i, pp. 79–84). In fact, however, constitutional analysis attended at length to England’s system of customary or common law. Just as most commentators found it virtually impossible to discuss English politics without reference to the mixed and balanced constitution, so they found it scarcely less difficult to consider the constitution without reference to the common law. ‘The constitution’, John Cartwright insisted, ‘is a frame of government coeval with, erected upon, and regulated by, the spirit of the common law of England’ (Cartwright 1776, p. 10). The political importance ascribed to the common law followed several lines of argument, much of it replete with the same language of exceptionalism and triumphalism directed at the constitution itself. In the grand narrative of England’s political development, the common law featured as parliament’s key ally in the struggles for English liberty (Forbes 1975, pp. 233–60; Weston 1991). Royal absolutism and unchecked prerogative threatened the courts of common law no less than the mixed constitution; both had survived through an extended process of mutual support. ‘Parliaments and the kingdom’, the seventeenth-century jurist Matthew Hale had explained, had shown ‘great regard’ for the common law and ‘great care . . . to preserve and maintain it’ (Hale 1971, pp. 35–6). One momentous product of this historical process was the imposing series of declarations of basic ‘rights and liberties’ issued by parliaments at moments of political peril. Blackstone equipped the Commentaries with a particularly fulsome and uncritical catalogue of these enactments: beginning with the measures forced upon an unwilling King John – the carta de foresta (the Forest Charter) and Magna Carta (the latter, ‘for the most part declaratory’ of the more ancient common law); next, the confirmatory legislation of Edward I and his successors (Magna Carta having been renewed thirty-two times, according to Sir Edward Coke); then, ‘after a long interval’, the great monuments of the Stuart era – the 1628 Petition of Right, the 1679 Habeas Corpus Act (‘a second Magna Carta’), the Bill of Rights of 1689, and, finally, the 1701 Act of Settlement, ‘for better securing our religion, laws, and liberties . . . according to the ancient doctrine of the common law’ (Blackstone 1979, i, pp. 123–4, iv, pp. 416–17, 431–4).16 16 Blackstone’s catalogue disregarded the more critical historical scholarship on the origins of the common law as well as on the antiquity of the mixed constitution (see Forbes 1975, pp. 233–307; Weston

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Natural jurisprudence and the science of legislation The historical symbiosis between the common law and the mixed constitution followed readily, since the two institutions shared the same goal of civil liberty. And the limitation of public power in England needed to be elucidated in terms of both structures. Just as the king could not alter the law except through the mechanism of parliamentary legislation, so he could not accuse a subject or punish him without mobilising the institutions of the common law. Thus, when Blackstone confidently boasted that ‘the idea and practice of this political liberty flourish in their highest vigour in these kingdoms where it falls little short of perfection’, he immediately referenced ‘the legislature, and of course the laws of England’. ‘This spirit of liberty is so deeply implanted in our constitution’, he maintained, ‘that a slave or a negro, the moment he lands in England, falls under the protection of our laws and . . . becomes eo instanti a freeman’ (i, pp. 122–3).17 For common law jurists, English law’s unrivalled devotion to personal liberty received its fullest manifestation in its protection of the rights of private property.18 Property rights, particularly ‘the law of real property’, commanded special attention in light of its being ‘the most important, the most extensive, and . . . the most difficult’ part of English law (Sullivan 1772, p. 18). For the theory of the constitution, however, of greatest concern were those features of common law that most directly implicated issues of state power. Montesquieu, in treating the ‘the power of judging’, referred to trial by jury and legal protections against arbitrary imprisonment (SL, xi.6, pp. 158–9). Delolme predictably expanded this line of analysis through some lengthy reflections on England’s practices of impartial and equal justice, and on the ‘extreme mildness’ of its criminal law (Delolme 1834, p. 329). Criminal justice, Delolme revealingly reported at the outset of three chapters devoted to the topic, was strictly not ‘part of the powers which are properly constitutional’; yet an area of law that so concerned ‘the security of individuals’ and ‘the power of the state’ had necessarily to be considered (pp. 135–6). In addition to the basic separation of judicial power (pp. 141–2, 1991). For examples of more restrained contemporary treatments, see Barrington 1769, p. 3; Delolme 1834, pp. 20–3; Hume 1983–5, i, pp. 442–6. On Blackstone’s legal history, see Cairns 1985; Willman 1983. 17 Blackstone’s generous formulation (later invoked by British abolitionists) exaggerated the common law’s more limited and circumspect treatment of African slaves in England, and in later editions he revised the wording. On Blackstone’s position and chattel slavery in eighteenth-century law, see Oldham 1992, ii, pp. 1221–44. 18 Among his accomplishments in the Commentaries was Blackstone’s success in presenting England’s notoriously labyrinthine rules of property law and common law procedure as ‘the genuine offspring of that spirit of equal liberty which is the singular felicity of Englishmen’ (Blackstone 1979, iii, pp. 422–3; see Lieberman 1989, pp. 39–48).

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The mixed constitution and the common law 146–7), England’s legal order included a full panoply of provisions further to ensure the liberty of the subject: public trials; protection against false imprisonment and false accusation; the elimination of judicial torture; written indictments; and a diligent strictness over procedural requirements in the interest of the accused (pp. 104, 147–53, 165–70). ‘All branches of government are influenced’, he enthused, ‘from the spirit both of justice and mildness’ which guided ‘the laws for the security of the subject’ as well as ‘the manner in which they are executed’ (p. 298).19 The heralded institutional centrepiece of the common law checks against the abuse of power was, of course, trial by jury – ‘that part of their liberty’, Delolme reported, ‘to which the people of England are most thoroughly and universally wedded’ (p. 164). What Hale extolled as ‘the best trial in the world’ figured prominently and unsurprisingly in the eighteenth-century catalogue of the antiquity and exceptionality of England’s liberties (Hale 1971, p. 160). Blackstone’s Commentaries (notwithstanding an initial reassurance ‘not [to] misspend the reader’s time in fruitless encomiums’) supplied no less than three extended panegyrics detailing ‘the glory of English law’ and ‘this palladium’ of ‘liberties’ (Blackstone 1979, iii, pp. 349–51, 379–81, iv, pp. 277–8, 342–4). In these treatments, moreover, the common law jury was often given an explicit and broad political purpose, which overshadowed its more specific function as one of several modes of trial in English law. Delolme, as we have seen, classified juries as part of the ‘democratic’ components of English government. Blackstone reported that juries not only restrained the ‘prerogatives of the crown’ in criminal cases by placing ‘in the hands of the people’ an appropriate ‘share’ in ‘the administration of public justice’, but they also equally served against ‘the encroachments of the more powerful and wealthy citizens’ (iv, p. 343, iii, pp. 380–1). John Adams proposed that the English constitution could be thought of as embodying two distinct schemes of mixed government: a mixed legislature of king, Lords, and Commons; and a mixed executive of king, judges, and juries. On this basis, ‘two branches of popular power’ were revealed – ‘voting for members of the House of Commons’ and ‘trials by juries’ – which together helped sustain ‘the balance and mixture of the government’ (Adams 1998, pp. 58–60, 1979, pp. 88–92). As Adams’s testimony indicates, this specifically political treatment of the common law jury was by no means unique to establishment apologists, 19 Delolme’s case for the mildness of criminal justice ignored the debate over the increased severity of penal sanctions which resulted from recent parliamentary legislation; see Beattie 1986, pp. 520–618; Lieberman 1989, pp. 199–215; and ch. 19 below.

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Natural jurisprudence and the science of legislation such as Blackstone and Delolme. Indeed, throughout the course of the century, it was the radical critics of Hanoverian government who often pressed this characterisation most zealously. Wilkes and his propagandists in the 1760s celebrated the jury as a representative body against which to measure the failings of a now-corrupted assembly of parliamentary representatives (Brewer 1980b, pp. 153–7). In a series of notorious prosecutions for seditious libel then and in the following decades, political dissidents found ample confirmation of the continuing efficacy of juries in the battle to preserve English liberties. Following the lapse of the Licensing Act in 1695, the common law bench revised and adapted the law of seditious libel so that it became a leading (if often counter-productive) instrument for silencing public attacks on the government. The frustration of these efforts largely depended on the repeated unwillingness of jurors to accept the specific and limited legal task assigned them in such cases by government prosecutors and common law judges.20 Such episodes, and their contemporary celebration, both confirmed and helped sustain the powerful ‘constitutionist idiom’ which remained so central to British radicalism through to the nineteenth century (Epstein 1994, pp. 3–5, 29–69). As in past eras, the battle against tyranny came armed with the appropriate common law weapons. The common law’s well-considered role in the restraining of public power did not, however, exhaust its contribution to the theory of England’s constitutional freedom. Of no less importance was the fund of conceptual resources the law provided for defining the myriad relationships of authority and subordination that comprised the social order of the community. The same government structures, routinely described in the explicitly political terms of the theory of the mixed constitution or the theory of the separation of powers, were no less appropriately or commonly understood in the settled juridical categories of private right and legal title. Burke made full use of this point in the ornate celebration of the English political experience which he pitted against the follies and wickedness of the French revolutionaries. Invoking the testimony of Coke and ‘and indeed all the great men who follow him, to Blackstone’, he emphasised how ‘our lawyers’ had taught the nation not only to regard its ‘most sacred rights and franchises as an inheritance’; in so doing, they additionally had made it possible for all of ‘the people’ to conceive government power and their 20 Juries were expected to determine whether in fact an accused printer or author had produced the publication, while the judge determined whether the publication was or was not seditious libel. The distribution of responsibility between judge and jury was modified in Fox’s Libel Act of 1792. See Green 1985, pp. 318–55; Hamburger 1985; Oldham 1992, ii, pp. 775–808.

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The mixed constitution and the common law own rights under a unifying logic of prescriptive title. ‘By a constitutional policy’, Burke shrewdly and reassuringly observed, ‘we receive, we hold, we transmit our government and our privileges, in the same manner in which we enjoy and transmit our property and our lives’ (Burke 2001, pp. 182, 184; Pocock 1960). While Burke’s Reflections on the Revolution in France (1790) supplied what became the best-known statement of this common law orientation for later generations, for his contemporary audience its most complete rehearsal had appeared twenty-five years earlier in the first volume of the Commentaries on the Laws of England. Blackstone’s celebrated volume furnished its readers with a uniquely detailed, elegant, and subsequently influential apology for Britain’s constitutional order. But this learning did not come assembled in a discrete section on the ‘constitution’ or even on ‘constitutional law’. Instead the book, devoted to ‘the rights of persons’, began with a chapter-length survey of ‘the three great and primary rights’ of English subjects: ‘personal security, personal liberty, and private property’. The chapter concluded with an overview of the principal ‘barriers’ established ‘to protect and maintain’ the three rights, which Blackstone characterised as a scheme of ‘auxiliary subordinate rights of the subject’ (Blackstone 1979, i, p. 136). These ‘auxiliary’ rights comprised the right of self-defence, the right to petition the king or parliament, the right to apply ‘to the courts of justice for redress of injuries’, the ‘limitation of the king’s prerogative’, and ‘the constitution, powers, and privileges of parliament’ (i, pp. 136–9). Blackstone’s chapters on parliament and the king then followed, presenting ‘the rights and duties of persons’ who exercised ‘supreme’ magistracy. The Commentaries next treated, in turn, the ‘rights of persons’ exercising ‘subordinate’ magistracy (sheriffs, constables, etc.); the rights associated with particular social ranks and stations (clergy, nobility, military, etc.); the rights ‘in private oeconomical relations’ (master–servant, husband–wife, etc.); and the rights of ‘artificial persons’ (corporations). This ordering of materials presented the central institutions of government as but one particular cluster of ‘rights of persons’ – rights which functioned to secure the ‘auxiliary subordinate rights’ of the subject, and which existed within a hierarchical system of personal rights that gradually reached down to the legal relations of the domestic household. The approach, which later English jurists found confused, served to erode the kind of organising boundary between state and society that featured in later treatments of constitutional law (Dicey 1939, p. 7; Lieberman 2002). But it properly reflected the manner in which the eighteenth-century state 345

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Natural jurisprudence and the science of legislation continued to be conceptualised and debated both in terms of the categories of customary law and in terms of the divisions of political science. Indeed, the two overlapping registers appeared in descriptions of each of the main components of England’s constitutional system. Thus the monarchy, from the perspective of constitutional analysis, appeared in its executive capacity and in its power of legislative veto. But the crown was equally conceived as a form of ‘estate’, an analogy that greatly complicated and potentially constrained efforts to alter the royal succession (Clark 1985, pp. 121–41; Nenner 1977, pp. 145–54, 178–90). Parliament’s constitutional function, as we have seen, centred on its control of supply and its legislative supremacy. But when contests arose over parliamentary ‘privilege’, its traditional status as a ‘high court’, whose power and jurisdiction were settled by ‘custom and usage’ (or lex parliamenti), regained prominence (Blackstone 1979, i, p. 158; Thomson 1938, pp. 329–33; Williams 1960, pp. 221–49). Again, the parliamentary franchise figured critically in the political assessment of the independence of the House of Commons and its credentials as a representative assembly. But the franchise was no less recognised to be a form of property for those who exercised it; and in disputed elections it was the issue of an elector’s good title to this property that often proved paramount.21 The categories of the common law thus furnished a distinctive framework for the elucidation and evaluation of constitutional structures – a framework, moreover, which at the same time effectively deprived the constitution of its convenient, if misleadingly limited, identification with the ‘the form of the legislature’ (Paley 1838, iii, p. 253). The gain in conceptual enrichment and juridical accuracy, in this sense, came at the cost of definitional clarity and precision. ‘Some have said that the whole body of the laws’ makes the constitution; ‘others that King, Lords, and Commons make the constitution’, reported John Adams from Boston in 1766. But even though neither definition seemed quite ‘satisfactory’, ‘yet I cannot say that I am at any loss about any man’s meaning when he speaks of the British constitution, or of the essentials and fundamentals of it’ (Adams 1998, p. 57). 21 The understanding of the franchise as property appeared routinely in election disputes. The issue was aired with particular thoroughness in the Oxfordshire election of 1754, which raised the question of whether voters who held copyhold tenures were legally entitled to the franchise on the basis of these tenancies (see Robson 1949, pp. 141–8).

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12 Social contract theory and its critics pat ri c k ri ley

1

The historical background

At the heart of social contract theory is the idea that political legitimacy, political authority, and political obligation are derived from the consent of the governed, and are the artificial product of the voluntary agreement of free and equal moral agents. On this view, legitimacy and duty depend on a concatenation of voluntary individual acts, and not on ‘natural’ political authority, patriarchy, theocracy, divine right, necessity, custom, convenience, or psychological compulsion. Michael Oakeshott was thus right to call contractarianism a doctrine of ‘will and artifice’ (1975a, p. 7).1 While traces of contract theory can be found in ancient and medieval thought, and while the doctrine has recently been revived by John Rawls, it is generally agreed that the golden age of social contract theory was the period 1650–1800, beginning with Hobbes’s Leviathan (1651) and ending with Kant’s Rechtslehre (Metaphysics of Morals, 1797; Rawls 1972, pp. 11–13; Riley 1982, 1983). For at least the following century it was eclipsed by utilitarianism, Hegelianism, and Marxism. But between the mid-seventeenth and the early nineteenth centuries consent emerged as the leading doctrine of political legitimacy. Hobbes urges in chapter 42 of Leviathan that ‘the right of all sovereigns is derived originally from the consent of every one of those that are to be governed’, and in chapter 40 he insists that human wills ‘make the essence of all covenants’ (Hobbes 1991, pp. 395, 323). Locke in the second of his Two Treatises of Government argues that ‘voluntary agreement gives . . . political power to governors’ (TTG, ii, §173, p. 383). Rousseau, in The Social Contract (1762), asserts that ‘I owe nothing to those to whom I have promised nothing’; ‘Civil association is the most voluntary act in the world; every man being born free and master of himself, no-one may on any pretext whatsoever subject him without his consent’ (SC, ii.6, p. 66, iv.2, p. 123). As for Kant, in the Rechtslehre he urges that all legitimate laws 1 For the background to the theme of this chapter see Barker 1947; Riley 1982, 1986; Ritchie 1893.

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Natural jurisprudence and the science of legislation must be such that rational men could consent to them (Kant 1965, pp. 97, 112–13). Similarly, the American Declaration of Independence holds that governments derive their ‘just powers’ from the consent of the governed. The theme is stressed in most major thinkers of the period between Hobbes and Kant, though Hume and Bentham are important exceptions. Even Edmund Burke, who rejected consent as the basis of authority, thought it useful to say that society was grounded on a metaphorical contract of some sort (Burke 2001, p. 260). Hegel, though scarcely an ‘atomistic individualist’ or a contractarian, explicitly argued that while ‘in the states of antiquity the subjective end was entirely identical with the will of the state’, in modern times ‘we make claims for private judgement, private willing, and private conscience’. When a social decision is to be made, Hegel continues, ‘an “I will” must be pronounced by man himself ’ (Hegel 1991, pp. 285, 321). Political philosophy since the seventeenth century was thus characterised by ‘voluntarism’, by an emphasis on the will of individuals. Why voluntarism came to hold such an important place in Western thought is debatable. It is probable that the introduction of Christianity facilitated a shift, from ancient theories of the good regime and the ‘naturally’ social end of man, to seeing politics as ‘good acts’, and hence requiring both knowledge of, and the will to do, the good. Politics now required moral assent, and the individual became implicated in politics by his own volition. The freedom to conform voluntarily to absolute standards had always been important in Christian doctrine; and the Reformation doubtless strengthened the element of individual choice and responsibility in moral thinking, while questioning the role of moral authority. It was natural enough that the ‘Protestant’ view of individual moral autonomy would pass from theology and moral philosophy into politics, forming the intellectual basis of social contract theory. By the end of the Reformation era, the mere excellence of an institution would no longer be sufficient to establish legitimacy: it would now require authorisation by individual men, understood, that is, as ‘authors’ of those institutions. However voluntarism and social contract theory arose, what is certain is that ideas of the good state increasingly gave way to ideas of the ‘legitimate’ state; and during the seventeenth century this legitimacy was often taken to rest on the notion of willing. That shift represented a substantial break with much of ancient tradition, in which consent does not commonly function as a principle of legitimacy (perhaps because the concept of ‘will’ rarely has major moral significance in ancient philosophy) (Adkins 1960, pp. 2–4). While the need for consent to fundamental principles of political society in order to create a political 348

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Social contract theory and its critics construct through will and artifice is a doctrine characteristic of the ‘idiom of individuality’, the ancient conception of a highly unified and collective politics was dependent on a morality of the common good quite foreign to any insistence on individual ‘will’ as the creator of society (Oakeshott 1962, pp. 249–51). This is why Aristotle repudiates contractarian views of society: any true polis, he urges in the Politics, must devote itself to the encouragement of goodness if the city is not to sink into a mere ‘alliance’, a mere covenant that ‘guarantees men’s rights against one another’ (Politics, 3.9.8.1280b). For Plato, with the exception of Crito, the will counts for even less: it is often simply assimilated to arbitrary caprice, as in the Republic, when Socrates refutes Thrasymachus’ view that justice is the will of the stronger (Republic 1.338a–c). The decisive turn in the voluntarisation of Western social thought came with Augustine, who appropriated the bona voluntas of Cicero and Seneca and deepened it into a central moral concept. In De libero arbitrio (Freedom of the Will) Augustine defines ‘good will’ as ‘the will by which we seek to live honestly and uprightly and to arrive at wisdom’ (3.1; 1968, 59:167; see Gilbert 1963). This is not to say that Augustine is a voluntarist or contractarian in his explicitly political writings, above all The City of God; but it is certainly true that he made important voluntaristic moral claims that later grew into political doctrines. In De spiritu et littera, for example, he insists that ‘consent is necessarily an act of will’ (Gilbert 1963, p. 33). Without the strong link that Augustine forged between consent and will, social contract theory would be unthinkable, since it defines consent in terms of will (Riley 1978, pp. 486–8). The link between voluntarism and politics became more explicit in some of the Christian philosophers who followed Thomas Aquinas, particularly William of Ockham and Nicholas of Cusa. In the early fourteenth century Ockham urged in his Quodlibeta that ‘no act is virtuous or vicious unless it is voluntary and in the power of the will’, and this general moral doctrine finds political expression in his insistence that ‘no-one should be set over a universitas of mortal men unless by their election and consent . . . what touches all ought to be discussed and approved by all’ (Ockham 1957, pp. 145–6). For Ockham, then, Christian liberty is both the ground of virtue and the limiting condition of rightful politics. A political voluntarism is even clearer in the greatest of the conciliar theorists, Nicholas of Cusa, who argued in his De concordantia catholica, in an almost contractarian vein, that ‘since all men are by nature free’, legitimate rulership can come only ‘from the agreement and consent of the subjects’. Such subjects, Nicholas insists, must not be 349

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Natural jurisprudence and the science of legislation ‘unwilling’, and whoever is ‘set up in authority’ by the ‘common consent of the subjects’ must be viewed ‘as if he bore within himself the will of all’ (qu. Sigmund 1963, pp. 96–7, 140). But the most advanced and subtle form of political voluntarism before the social contract school itself is contained in Francisco Su´arez’s On the Laws and God the Lawgiver (1612). For Su´arez free will and political consent are analogous or even parallel; will is the ‘proximate cause’ of the state. Su´arez summarises his doctrine with the observation that ‘human will is necessary in order that men may unite in a single perfect community’, and that ‘by the nature of things, men as individuals possess to a partial extent (so to speak) the faculty for establishing, or creating, a perfect community’. Plainly, for Su´arez that faculty is will: men can be ‘gathered together’ into ‘one political body’ only by ‘special volition, or common consent’; the people cannot ‘manifest’ consent ‘unless the acts are voluntary’ (Su´arez 1944, pp. 66, 370, 375, 380, 383, 545). It is possible to treat contractarianism as a narrowly political and secular idea, or as a theory of rational decision-making. But this would take inadequate account of the revolution introduced into political and moral philosophy by Christian ideas and thereby underemphasise the ethical components of contractarianism, such as autonomy, responsibility, duty, authorisation, and willing (Arendt 1978). 2

The equilibrium between consent and natural law in Locke

In the Second Treatise Locke argues that ‘voluntary agreement gives . . . political power to governors for the benefit of their subjects’ and that ‘God having given man an understanding to direct his actions, has allowed him a freedom of will, and liberty of acting’ (TTG, ii, §173, p. 383, ii, §58, p. 306). At first sight Locke appears to have taken up and extended the social contract doctrine of Hobbes; but there is disagreement as to what extent Locke was really a contractarian at all. He is sometimes represented as a consent and social contract theorist, sometimes as a theorist of natural law, sometimes as a theorist of natural rights (particularly natural property rights). The problem is that all three characterisations are correct; the difficulty is to find an equilibrium between them so that none is discarded in the effort to define Locke’s complete concept of right. Nevertheless, some writers urge that consent and contractarianism are not central in Locke because natural law is for him a sufficient standard of right, obviating the need for mere consensual arrangements. It is true that 350

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Social contract theory and its critics excluding from Locke’s system the obligations and rights to which consent and contract give rise leaves a tolerably complete ethical doctrine based on natural law and rights. But natural law, though necessary for Locke, is not sufficient to define explicitly political rights and duties, for there is a distinction to be drawn between the general moral obligations that men have under natural law and the particular political obligations that citizens have through consent and the social contract. This is clear not only in the Second Treatise but also in the Essay concerning Human Understanding (1689) (Locke 1959, pp. 472–3). In book 2, chapter 28 of the Essay Locke draws a careful distinction between the natural law, to which all men as men are obliged to conform their voluntary actions, and the civil law, to which all men as citizens are obliged to adhere because they have created a human legislative authority by consent. ‘A citizen, or a burgher’, Locke says, ‘is one who has a right to certain privileges in this or that place. All this sort depending upon men’s wills, or agreement in society, I call instituted, or voluntary; and may be distinguished from the natural.’ In a commonwealth, which is what human wills institute, men ‘refer their actions’ to a civil law to judge whether or not they are lawful or criminal. Natural law, however, is not instituted by consent, not even by a Grotian ‘universal’ consent. Nor does it merely define ‘certain privileges in this or that place’. It is rather the law ‘which God has set to the actions of men’, and is ‘the only true touchstone of moral rectitude’ (Locke 1959, pp. 472–3, 475–6). But the natural law defines only general moral goods and evils, only moral duties and sins; it cannot point out what is a crime, in the strict legal sense, in a commonwealth, in ‘this or that place’: If I have the will of a supreme invisible lawgiver for my rule, then, as I supposed the action commanded or forbidden by God, I call it good or evil, sin or duty: and if I compare it to the civil law, the rule made by the legislative power of the country, I call it lawful or unlawful, a crime or no crime. (p. 481)

To say, then, that the natural law is a complete and sufficient standard of political right is for Locke to conflate sin and crime, the duties of man and citizen, what one owes to God with what one owes to the civil magistrate. As a result, the kind of objection to Lockean contractarianism that one finds, for example, in T. H. Green (‘a society governed by . . . a law of nature . . . would have been one from which political society would have been a decline, one in which there could have been no motive to the establishment of civil government’) is at best only half-right (Green 1941, 351

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Natural jurisprudence and the science of legislation p. 72). It is partly wrong because a society governed by a law of nature would have had a motive to establish civil government – a motive based not merely on a desire to distinguish between sin and crime, divine and civil law, what one owes as a man and as a citizen, but also on a desire to set up some ‘known and impartial judge’ to serve as ‘executor’ of the law of nature, to avoid men’s being the judges of their own cases. Locke, after all, states clearly that there are three good reasons for allowing the natural law to be politically enforced: First . . . though the law of nature be plain and intelligible to all rational creatures; yet men being biased by their interest . . . are not apt to allow of it as a law binding to them in the application of it to their particular cases. Secondly, In the state of nature there wants a known and indifferent judge, with authority to determine all differences according to the established law . . . Thirdly, In the state of nature there often wants power to back and support the sentence when right, and to give it due execution. (TTG, ii, §§124–6, p. 351)

But Green is certainly right in saying that the transition from a society truly and completely governed by natural law, if such a society could exist, to one under political government, would involve a decline. In section 128 of the Second Treatise Locke argues that under the terms of the law of nature every man ‘and all the rest of mankind are one community, make up one society distinct from all other creatures’. If it were not for the ‘corruption’ and ‘viciousness’ of ‘degenerate men’, Locke goes on, ‘there would be no need of any other’ society; there would be no necessity ‘that men should separate from this great and natural community, and by positive agreements combine into smaller and divided associations’ (p. 352). If Green is right in pointing out that voluntarily instituted political society represents a decline, that does not mean that it is unnecessary, that there is no motive for setting it up. For Locke, as for Kant in Perpetual Peace, the mere fact that it would be better if natural law were universally observed, such that one could dispense with politics, does not make politics unnecessary, given human life as it is. The social contract, for Locke, is necessitated by natural law’s inability to be literally ‘sovereign’ on earth, by its incapacity to produce ‘one society’. Natural law and contractarianism, far from being simply antithetical in Locke, necessarily involve each other, at least given human imperfection and ‘corruption’. The most familiar contractarian arguments are found in the Second Treatise. Sometimes – indeed, repeatedly – Locke contents himself with the bare claim that consent creates political right, as in section 102 (‘politic 352

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Social contract theory and its critics societies all began from a voluntary union, and the mutual agreement of men freely acting in the choice of their governors, and forms of government’) and in section 192 (rulers must put the people ‘under such a frame of government, as they willingly, and of choice, consent to’) (pp. 335, 394). Occasionally, however, he provides a more elaborate argument, particularly when he wants to distinguish legitimate political power from both paternal and despotic power. Nature gives the first of these, viz. paternal power to parents for the benefit of their children during their minority, to supply their want of ability, and understanding how to manage their property . . . Voluntary agreement gives the second, viz. political power to governors for the benefit of their subjects, to secure them in the possession and use of their properties. (TTG, ii, §173, p. 383)

It is never the case that consent and contract are treated as the whole of political right, that whatever happens to be produced by this process would ex necessitatis be correct. In Locke there is no general will that is always right. This is perfectly clear, for example, in section 95, which is one of Locke’s best statements of an equilibrium between the naturally and the consensually right. Since men are naturally ‘free, equal and independent’, no-one can be subjected to the political power of anyone else ‘without his own consent’. In giving up ‘natural liberty’, and accepting the ‘bonds of civil society’, men agree to ‘join and unite into a community’, not for the purpose of being controlled by any objective to which a group may happen to consent, but for the purpose of ‘comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of their properties, and a greater security against any that are not of it’ (TTG, ii, §95, pp. 330–1). Security, of course, is authorised by natural law, which protects the innocent by allowing defence against wrongful attacks, while property is a natural right derived partly from God’s giving the earth to men and partly from human labour. A political order, created by consent, makes these things possible even given the ‘inconvenience’ of some men’s ‘corruption’ and ‘depravity’. In this passage there is an equilibrium between consent, natural law, and natural rights: it is because men are made free and equal by God, because they want to enjoy natural rights in the security of a political society in conformity with natural law, that they consent to become citizens, to conform their voluntary actions to the civil law as well as to the divine law and the law of reputation. Consent operates within a context for John Locke; it is a strand in a complex doctrine. 353

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Natural jurisprudence and the science of legislation 3

Bossuet and the challenge of divine right to contract theory

Before turning to contractarianism in the ‘high’ Enlightenment, we need to note that it was never unchallenged in the eighteenth century. One would not expect a partisan of divine right absolute monarchy to favour a view of government as the product of human ‘will and artifice’, set up between equals in a state of nature – that is, in the absence of any natural (especially paternal) authority. There is no trace of contractarianism in Bossuet’s claim, in his Politics Drawn from the Very Words of Holy Scripture (1709), that ‘there never